Coca-Cola ... opinions, orders, injunctions and decrees relating to unfair competition and infringement of trade-mark

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library

ct tbe

Tftmvereit? of Toronto

vs. Wallace IFlesbftt

from tbe law library?

ot tbe

honourable lilallace IWesbitt, ik.
treasurer of tbe Xa\v Society
of Tflppcr Canada

THE GOCA-COLA COMPANY

'A single thing coming from a
single source, and well known
to the community."

— U. S. SUPREME COURT.

OPINIONS, ORDERS, INJUNCTIONS, AND DECREES

RELATING TO UNFAIR COMPETITION AND

INFRINGEMENT OF TRADE-MARK

FIRST EDITION
1923

\

Respectfully dedicated to the patrons
of Coca-Cola. "The protection given
by law to trade-marks has for its object
the protection of the owner in his prop-
erty, and the protection of the public
from deception."

1923

/

A TRADE-MARK IN LAW

"The function of a trade-mark is to point dis-
tinctively, either by its own meaning or by association,
to the origin or ownership of the wares to which it is
applied." Thus Coca-Cola signifies, in the language
of the United States Supreme Court, "a single thing
coming from a single source, and well known to the
community. ' '

Trade-mark rights are moral capital on which much
business is done. As valued in good will, they com-
pose vital assets of many of the world 's foremost
businesses. But in all the history of the United States
Supreme Court, approximately fifty-nine unfair com-
petition cases have come up for adjudication. About
forty-one involved trade-marks. Of these, twelve have
been upheld as valid trade-marks.

Because Coca-Cola is one of these, we have pre-
sented in this book the cases and a number of exhibits
which give the legal history of Coca-Cola, dating from
its beginning in 1886 and covering the 37 years since.
The record is made accessible in this form as a con-
tribution from our experience in support of fair com-
petition in business.

THE COCA-COLA COMPANY.

PAGES

Dedication.
Foreword.

Cases 1 to 633

Registrations 634 and 635

Chain of Title 636 to 648

Index to Cases (i) to (iv)

Index to Subject-Matter (v) to (viii)

SUPREME COURT

OF THE UNITED STATES

254 U. S. 143
No. 101— OCTOBER TERM, 1920

THE COCA-OOLA COMPANY, Petitioner,

v.
THE KOKE COMPANY OF AMERICA, et al.

On Writ of Certiorari to the United States Circuit

Court of Appeals for The Ninth Circuit

(December 6, 1920).

HAKOLD HIRSCH,
EDWARD S. ROGERS,
FREDERICK W. LEHMAN,
FRANK F. REED,
Solicitors and of Counsel for Petitioner.

RICHARD E. SLOAN,
AUSTIN B. LITTLETON,

For Defendants.

THE COCA-COLA COMPANY

No. 101— OCTOBER TERM, 1920

THE COCA-COLA COMPANY, Petitioner,

v.
THE KOKE COMPANY OF AMERICA, et al.

On Writ of Certiorari to the United^ States Circuit

Court of Appeals for The Ninth Circuit

(December 6, 1920).

MB. JUSTICE HOLMES delivered the opinion of the
Court :

This is a bill in equity brought by The Coca-Cola
Company to prevent the infringement of its trade-
mark Coca-Cola and unfair competition with it in its
business of making and selling the beverage for which
the trade-mark is used. The District Court gave the
plaintiff a decree, 235 Fed. Eep. 408. This was re-
versed by the Circuit Court of Appeals, 255 Fed. Eep.
894. Subsequently a writ of certiorari was granted
by this court. 250 U. S. 637.

It appears that after the plaintiff's predecessors in
title had used the mark for some years it was regis-
tered under the Act of Congress of March 3r 1881,
and again under the Act of February 20, 1905, c. 592,
33 Stat. 724. Both the courts below agree that, sub-
ject to the one question to be considered, the plaintiff
has a right to equitable relief. Whatever may have
been its original weakness, the mark for years has

— 2 —

v. THE KOKE CO. OF AMEEICA, et al.

acquired a secondary significance and has indicated
the plaintiff's product alone. It is found that de-
fendant's mixture is made and sold in imitation of
the plaintiff's and that the word Koke was chosen
for the purpose of reaping the benefit of the adver-
tising done by the plaintiff and of selling the imita-
tion as and for the plaintiff's goods. The only ob-
stacle found by the Circuit Court of Appeals in the
way of continuing the injunction granted below was
its opinion that the trade-mark in itself and the ad-
vertisements accompanying it made such fraudulent
representations to the public that the plaintiff had
lost its claim to any help from the court. That is
the question upon which the writ of certiorari was
granted and the main one that we shall discuss.

Of course a man is not to be protected in the use
of a device the very purpose and effect of which is
to swindle the public. But the defects of a plaintiff
do not offer a very broad ground for allowing another
to swindle him. The defense relied on here should
be scrutinized with a critical eye. The main point is
this: Before 1900 the beginning of the good will was
more or less helped by the presence of cocaine, a drug
that, like alcohol or caffein or opium, may be described
as a deadly poison or as a valuable item of the phar-
macopoaia according to the rhetorical purposes in
view. The amount seems to have been very small,
but it may have been enough to begin a bad habit and
after the Food and Drug Act of June 30, 1906, c. 3915,
if not earlier, long before this suit was brought, it
was eliminated from the plaintiff's compound. Coca
leaves still are used, to be sure, but after they have
been subjected to a drastic process that removes from
them every characteristic substance except a little
tannin and still less chlorophyl. The cola nut,, at best,
on its side furnishes but a very small portion of the
caffein, which now is the only element that has ap-
preciable effect. That comes mainly from other
sources. It is argued that the continued use, of the
name imports a representation that has ceased to be

THE COCA-COLA COMPANY

true and that the representation is reinforced by a pic-
ture of coca leaves and cola nuts upon the label and
by advertisements, which, however, were many years
before this suit was brought, that the drink is an
" ideal nerve tonic and stimulant, " etc., and that thus
the very thing sought to be protected is used as a
fraud.

The argument does not satisfy us. We are dealing
here with a popular drink, not with a medicine, and,
although what has been said might suggest that its
attraction lay in producing the expectation of a
toxic effect, the facts point to a different conclu-
sion. Since 1900 the sales have increased at a very
great rate, corresponding to a like increase in ad-
vertising. The name now characterizes a beverage
to be had at almost any soda fountain. It means a
single thing coming from a single isource, and well
known to the community. It hardly would be too much
to say that the drink characterizes the name as much
as the name the drink. In other words, Coca-Cola
probably means to most persons the plaintiff's
familiar product to be had everywhere, rather than
a compound of particular substances. Although the
fact did not appear in United States v. Coca-Cola Co.,
241 U. S. 265, 289, we see no reason to doubt that, as
we have said, it has acquired a secondary meaning in
which perhaps the product is more emphasized than
the producer, bu.t to which the producer is entitled.
The coca leaves and whatever of cola nut is employed
may be used to justify the continuance of the name
or they may affect the flavor as the plaintiff contends,
but before this suit was brought the plaintiff had ad-
vertised to the public that it must not expect and
would not find cocaine, and had eliminated everything
tending to suggest cocaine effects except the name
and the picture of the leaves and nuts, which prob-
ably conveyed little or nothing to most who saw it.
It appears to us that it would be going too far to deny
the plaintiff relief against a palpable fraud because
possibly here and there an ignorant person might call

— 4 —

v. THE KQKE CO. OF AMEEICA, et al.

for the drink with the hope for incipient cocaine in-
toxication. The plaintiff's position must be judged by
the facts as they were when the suit was begun, not
by facts of a different condition and an earlier time.

The decree of the District Court restrains the de-
fendant from using the word "dope." The plaintiff
illustrated in a very striking way the fact that the
word is one of the most featureless known even to the
language of those who are incapable of discriminat-
ing speech. In some places it would be used to call
for Coca-Cola. It equally would have been used to
call for anything else having about it a faint aureole
of poison. It does not suggest Coca-Cola by simi-
larity, and, whatever objections there may be to its use,
objections which the plaintiff equally makes to its ap-
plication to Coca-Cola, we see no ground on which the
plaintiff can claim a personal right to exclude the de-
fendant from using it.

The product, including the coloring matter, is free
to all who can make it if no extrinsic deceiving ele-
ment is present. The injunction should be modified
also in this respect.

Decree reversed. Decree of District Court modified
and affirmed.

— 5 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

THE COCA-COLA COMPANY,, Plaintiff,

v.

THE KOKE COMPANY OF AMERICA,
THE SOUTHERN KOKE COMPANY, LTD.,
THE KOKE COMPANY OF TEXAS,
THE KOKE COMPANY OF OKLAHOMA, and
THE KOKE COMPANY OF ARKANSAS,

Defendants.

DECREE

I

Upon the filing of the mandate of January,, 1921,
of the Supreme Court, and it appearing therefrom
that said court has reversed the decree of the Circuit
Court of Appeals of the Ninth Circuit in this cause,
has modified and affirmed the decree of this court
herein, and has remanded this cause to this court, and
it appearing further that, pending the proceeding in
the Supreme Court, The Coca-Cola Company, a Dela-
ware corporation, succeeded to the rights of the orig-
inal plaintiff herein, The Coca-Cola Company, a
Georgia corporation, and that said Coca-Cola Com-
pany of Delaware, has been duly substituted as plain-
tiff herein; now, in conformity with the mandate of
the Supreme Court of the United States, it is ordered,
adjudged and decreed as follows :

(1) That the court has jurisdiction of the subject
matter and of the parties to the suit.

(2) That the word " Coca-Cola" is a valid trade-
mark.

(3) That plaintiff is the owner of and alone entitled
to use the trade-mark "Coca-Cola" and that its goods
alone can lawfully be sold under that name.

— 6 —

v. THE KOKE CO. OF AMEKICA, et at.

(4) That the word "Koke" is an abbreviation of
the word "Coca-Cola" and is used by the public and
by purchasers in designating the plaintiff's product
"Coca-Cola,"

(5) That the defendant, The Koke Company of
America, and its predecessor, J. C. Mayfield, did not
adopt or make use of the name l i Koke ' ' until the year
1909, and that they have had and have no right to
its use.

(6) That defendants and their predecessors have
no interest in or claim to the trade-mark "Coca-Cola"
or the "Coca-Cola" business or formula, and the de-
fendants and their predecessors' claim of interest in
the "Coca-Cola" business, the trade-mark "Coca-
Cola" and knowledge of the "Coca-Cola" formula are
without foundation.

(7) That the word "Koke" was adopted and used
by the defendants and their predecessors with the de-
liberate purpose of representing their goods to be the
product and manufacture of The Coca-Cola Company.

(8) The defendants' salesmen were instructed to
sell and did sell defendants' product as and for
"Coca-Cola."

(9) That the defendants and each of them have in-
fringed the plaintiff's trade-mark,, not, however, by
the use of the word "Dope," and have been guilty of
unfair competition with the plaintiff.

(10) That defendants, The Koke Company of
America, The Southern Koke Company, Ltd., The
Koke Company of Texas, The Koke Company of
Oklahoma, and the Koke Company of Arkansas, and
each of them, their officers, servants, agents, em-
ployes, attorneys, licensees, transferees and assigns,
and each and all thereof, and all acting by or under
their authority, be and they are each and all perpetu-
ally enjoined and restrained from using or employ-
ing, in connection with the manufacture, advertise-
ment, offering for sale or sale of any product not be-
ing the genuine product of the plaintiff, the word
"Coca-Cola" or any like word, or the word "Koke"

— 7 —

THE COCA-COLA COMPANY

or any like word; from claiming or asserting any
right in the name "Koke" or interfering or threaten-
ing any prosecution, or interference with the use
thereof, from using or employing or authorizing the
use or employment of labels, designs or devices iden-
tical with or like the labels, designs or devices of the
plaintiff, or the labels, designs or devices used by the
defendants and referred to in the bill of complaint
herein; from using, in connection with the sale or
shipment of any product not the plaintiff's, barrels
or receptacles colored in imitation of the plaintiff's
said barrels or receptacles; from stating or repre-
senting that the syrup made or sold by defendants, or
any of them, is made from the same formula as
"Coca-Cola" syrup, or that defendants, or any of
them, know or may rightfully use or employ the
"Coca-Cola" formula; and further, from doing any
act or thing, or using any name or names, devices,
artifices or contrivances which may be calculated to
represent that any product not of the plaintiff's pro-
duction is the genuine "Coca-Cola" of plaintiff,, and
that writs of perpetual injunction accordingly issue
forthwith.

(11) That defendants and each of them be required
to account to plaintiff for any and all profits derived
by them, or any or either of them, and to pay to the
plaintiff such damages as it may have sustained by
reason of the unlawful conduct of defendants and
each of them, excluding therefrom any profits or dam-
ages made or sustained by the use of the word * ' Dope, ' '
and that this cause be and it is hereby referred to
Edwin F. Jones, the Standing Master in Chancery of
this Court, to take and state an accounting to the
plaintiff for any and all such profits and any and all
of said damages, with full power to subpoena and
order the attendance of witnesses, the taking of depo-
sitions and the production of books, papers and docu-
ments pertinent to the taking and stating of said ac-
counting for profits and damages, and to report said

v. THE KOKE CO. OF AMERICA, et al.

accounting and statement of profits and damages as
aforesaid as by law provided.

(12) That defendants pay the costs of this suit to
be taxed, including the costs in the Circuit Court of
Appeals, the costs in the Supreme Court and the costs
in this court, and that upon taxation plaintiff have
execution therefor.

Dated the 14th day of June,, A. D. 1921.

WM. H. SAWTELLE,

Judge.

— 9 —

IN THE SUPREME COURT
OF THE UNITED STATES

241 U. S. 995
No. 562— MAY 22, 1916

UNITED STATES

v.

FORTY BARBELS AND TWENTY KEGS OF

COCA-COLA

In Error to the United States Circuit Court of Appeals
for the Sixth Circuit.

HAKOLD HIRSCH,
W. D. THOMSON,

J. B. SlZER,

A. W. CHAMBLISS,

For Defendant in Error.

— 10

241 U. S. 995

No. 562— MAY 22, 1916

UNITED STATES, Plaintiff in Error,

v.

FORTY BARRELS AND TWENTY KEGS OF

COCA-COLA, THE COCA-COLA COMPANY

OF ATLANTA, GEORGIA, Complainant.

FOOD AND DRUGS— PROPRIETARY FOOD— ADULTERA-
TION—HARMFUL INGREDIENT.

1. A poisonous or deleterious ingredient called for as a con-
stituent by a secret formula for a food product sold under its own
distinctive name may still be an added ingredient within the
meaning of the provisions of the food and drugs act of June 30,
1906 (34 Stat. at L. 768, Chap. 3915, Comp. Stat. 1913, Section
8717), condemning as adulterated any article of food that contains
"any added poisonous or other added deleterious ingredient which
may render such article injurious to health," and the provisos in
Section 8 that food mixtures or compounds "which may be now or
from time to time hereafter known as articles of food under their
own distinctive names" are to enjoy the stated immunity only in
case they do "not contain any added poisonous or deleterious in-
gredients," and that nothing in the act shall be construed to
require manufacturers of proprietary foods "which contain no un-
wholesome added ingredient" to disclose their trade formulas ex-
cept as the provisions of the act may require to secure freedom
from adulteration or misbranding.

FOOD AND DRUGS — ADULTERATION — PROPRIETARY
FOOD— ABSTRACTING HARMFUL INGREDIENT.

2. The elimination of a harmful irgredient from a proprietary
food which without such ingredient would not be the same, does

— 11 —

not constitute an adulteration under the food and drugs act of
June 30, 1906 (34 Stat. at L. 768, chap. 391f>. Coinp. Stat. 1913,
Sec. 8717), Section 7, by the abstraction of a "valuable constituent."

FOOD AND DRUGS— ADULTERATION— ADDED HARM-
FUL INGREDIENT— CAFFEINE.

3. Caffeine introduced into a syrup during the second or third
melting is an "added" ingredient within the meaning of the food
and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915,
Comp. Stat. 1913, Section 8717), condcmnirg as adulterated any
article of food that contains "any added poisonous or other added
deleterious ingredient which may render such article injurious to
health," although it is called for as a constituent by the secret
formula under which the syrup is compounded.

TRIAL — QUESTION FOR JURY — ADULTERATION —
ADDED HARMFUL INGREDIENT.

4. Whether caffeine added to a food product is a poisonous or
deleterious ingredient which may render the. article deleterious to
health, within the meaning of the act of June 30, 1906 (34 Stat.
at L. 768, chap. 3915, Comp. Stat. 1913, Section 8717), condemning as
adulterated any article of food Hint contains "any added poison-
ous or other added deleterious ingredient which may render such
article injurious to health," is a question of fact for the jury, where
the evidence on that point is conflicting.

FOOD AND DRUGS— MISBRANDING— COCA-COLA— DIS-
TINCTIVE OR DESCRIPTIVE NAME.

5. The name "Coca-Cola" cannot be said as a matter of law to
be distinctive rather than descriptive of a compound with coca
and cola ingredients, so as to escape condemnation under the food
and drugs act of June 30, 1906 (34 Stat. at L. 768, chap. 3915,
Comp. Stat. 1913, Section 8717), Section 8, as misbranded in case
of the absence of either coca or cola, on the theory that it was
within the protection of the proviso in that section that an article
of food shall not be deemed to be misbranded in the case of "mix-
tures or compounds which may be now or from time to time here-
after known as articles of food under their own distinctive names,"
if the distinctive name of another article is not used or imitated,
and the name on the label or brand is* accompanied with a state-
ment of the place of production.

FOOD AND DRUGS— MISBRANDING— COCA-COLA— SEC-
ONDARY SIGNIFICANCE OF NAME.
J0T A secondary significance cannot be attributed to the name
Coca-Cola," as descriptive of a product kr.own to be destitute of
either of the products indicated by its primary meaning, so as to
save it from condemnation under the food and drugs act of June 30,
1906 (34 Stat. at L. 768, chap. 3915, Comp. Stat. 1913, Section

— 12 —

v. 40 BARRELS AND 20 KEGS OF COCA-COLA

8717), Section 8, on the theory that it is within the protection
accorded by the proviso in that section to food mixtures or com-
pounds known under their own distinctive names.

Messrs. Harold Hirsch and J. B. Sizer argued the
cause, and with Messrs. A. W. Chambliss and W. D.
Thomson, filed a brief for defendant in error.

In error to the United States Circuit Court of Ap-
peals for the Sixth Circuit to review a judgment
which affirmed a judgment of the District Court
for the Eastern District of Tennessee, entered
upon a directed verdict in favor of the claimant
in a libel for condemnation under the Food and
Drugs Act. Reversed and remanded for further
proceedings.

MR. JUSTICE HUGHES delivered the opinion of the
Court :

This is a libel for condemnation under the Food
and Drugs Act (June 30, 1906, chap. 3915, 34 Stat.
at L. 768, Comp. Stat. 1913, Section 8717) of a cer-
tain quantity of a food product known as " Coca-
Cola " transported for sale, from Atlanta, Georgia,
to Chattanooga, Tennessee. It was alleged that the
product was adulterated and misbranded. The alle-
gation of adulteration was, in substance, that the
product contained an added poisonous or added dele-
terious ingredient, caffeine, which might render the
product injurious to health. It. was alleged to be
misbranded in that the name "Coca-Cola" was a rep-
resentation of the presence of the substances coca, and
cola; that the product "contained no coca and little
if any cola," and thus was an "imitation" of these
substances, and was offered for sale under their "dis-
tinctive name." We omit other charges which the
government subsequently withdrew. The claimant
answered, admitting that the product contained as
one of its ingredients "a small portion of caffeine,"

, 13

UNITED STATES

but denying that it was either an "added" ingredi-
ent, or a poisonous or a deleterious ingredient which
might make the product injurious. It was also de-
nied that there were substances known as coca and
cola "under their own distinctive names, " and it
was averred that the product did contain "certain
elements or substances derived from coca leaves and
cola nuts." The answer also set forth, in substance,
that "Coca-Cola" was the "distinctive name" of the
product under which it had been known and sold
for more than twenty years as an article of food,
with other averments negativing adulteration and
misbranding under the provisions of the act.

Jury trial was demanded, and voluminous testi-
mony was taken. The district judge directed a ver-
dict for the claimant (191 Fed. 43^), and judgment
entered accordingly was affirmed on writ of error
by the Circuit Court of Appeals (132 C. C. A. 47,
215 Fed. 535). And the government now prosecutes
this writ.

First. As to "adulteration." The claimant, in its
summary of the testimony, states that the article in
question "is a syrup manufactured by the claimant
and sold and used as a base for soft drinks
both at soda fountains and in bottles. The evidence
shows that the article contains sugar, water, caf-
feine, glycerine, lime juice and other flavoring mat-
ters. As used by the consumer, about. 1 ounce of
this syrup is taken in a glass mixed with about 7
ounces of carbonated water, so that the consumer
gets in an 8-ounce glass or bottle of the beverage,
about 1.21 grains of caffeine." It is said that in the
year 1886 a pharmacist in Atlanta "compounded a
syrup by a secret formula, which he called "Coca-
Cola Syrup and Extract"; that the claimant acquired
"the formula, name, label and good will for the
product" in 1892, and then registered "a trade-mark
for the syrup consisting of the name Coca-Cola,"

— 14 —

v. 40 BABEELS AND 20 KEGS OF COCA-COLA

and has since manufactured and sold the syrup under
that name. The proportion of caffeine was slightly
diminished in the preparation of the article for bot-
tling purposes. The claimant again registered the
name " Coca-Cola" as a trade-mark in 1905, averring
that the mark had been "in actual use as a trade-
mark of the applicant for more than ten years next
preceding the passage of the act of February 20,
1905, " and that it was believed such use had been
exclusive. It. is further stated that, in manufactur-
ing in accordance with the formula, "certain extracts
from the leaves of the coca shrub and the nut ker-
nels of the cola tree were used for the purpose of
obtaining a flavor," and that "the ingredient con-
taining these extracts," with cocaine eliminated, is
designated as "Merchandise No. 5." It appears that
in the manufacturing process water and sugar are
boiled to make a syrup; there are four meltings; in
the second or third the caffeine is put in; after the
meltings the syrup is conveyed to a cooling tank and
then to a mixing tank, where the other ingredients
are introduced and the final combination is effected;
and from the mixing tank the finished product is
drawn off into barrels for shipment.

The questions with respect to the charge of "adul-
teration" are (1) whether the caffeine in the article
was an added ingredient within the meaning of the
act (Section 7, subdiv. 5th), and if so (2) whether it
was a poisonous or deleterious ingredient which might
render the article injurious to health. The decisive
ruling in the courts below resulted from a negative
answer to the first question. Both the district judge
and the Circuit Court of Appeals assumed for the
purpose of the decision that as to the second ques-
tion there was a conflict of evidence which would
require its submission to the jury (191 Fed. 433,
132 C. C. A. 47, 215 Fed. 540). But it was concluded,
as the claimant contended, that the caffeine — even if

— 15 —

UNITED STATES

it could be found by the jury to have the alleged
effect — could not be deemed to be an "added in-
gredient" for the reason that the article was a com-
pound, known and sold under its own distinctive
name, of which the caffeine was a usual and normal
constituent. The government challenges this ruling
and the construction of the statute upon which it
depends; and the extreme importance of the question
thus presented with respect to the application of the
act to articles of food sold under trade names is at
once apparent. The government insists that the fact
that a formula has been made up and followed and
a distinctive name adopted does not suffice to take
an article from the reach of the statute; that the
standard by which the combination in such a case
is to be judged is not necessarily the combination
itself; that a poisonous or deleterioiis ingredient, with
the stated injurious effect may still be an added in-
gredient in the statutory sense, although it is cov-
ered by the formula and made a constituent, of the
article sold.

The term "food," as used in the statute, includes
"all articles used for food, drink, confectionery or
condiment * whether simple, mixed or com-

pound" (Section 6). An article of "food" is to be
deemed to be "adulterated" if it. contain "any added
poisonous or other added deleterious ingredient which
may render such article injurious to health" (Sec-
tion 7, subdiv. 5th). With this section is to be read
the proviso in Section 8, to the effect that ' * an article
of food which does not contain any added poisonous
or deleterious ingredients shall not be deemed to be
adulterated or misbranded" in the case of "mixtures
or compounds which may be now or from time to
time hereafter known as articles of food, under their
own distinctive names," if the distinctive name of
another article is not used or imitated, and the name
on the label or brand is accompanied with a statement

— 10 —

v. 40 BARBELS AND 20 KEGS OF COCA-COLA

of the place of production. And Section 8 concludes
with a further proviso that nothing in the act shall
be construed "as requiring or compelling proprietors
or manufacturers of proprietary foods which contain
no unwholesome added ingredient to disclose their
trade formulas, except in so far as the provisions of
this act may require to secure freedom from adultera-
tion or misbranding. "

In support of the ruling below, emphasis is placed
upon the general purpose of the act, which, it is said,
was to prevent deception, rather than to protect the
public health by prohibiting traffic in articles which
might be determined to be deleterious. But a de-
scription of the purpose of the statute would be in-
adequate which failed to take account of the design
to protect the public from lurking dangers caused
by the introduction of harmful ingredients, or which
assumed that this end was sought to be achieved by
simply requiring certain disclosures. The statute is
eititled "An Act for Preventing the Manufacture, Sale
or Transportation of Adulterated or Misbranded or
Poisonous or Deleterious Foods, Drugs, Medicines and
Liquors," etc. In the case of confectionery, we find
that it is to be deemed to be adulterated if it con-
tains certain specified substances l ' or other ingredient
deleterious or detrimental to health." So, under Sec-
tion 7, subdivision 6th, there may be adulteration of
food in case the article consists in whole or in part
of "any portion of an animal unfit for food, whether
manufactured or not, or if it is the product of a dis-
eased animal, or one that has died otherwise than by
slaughter." In United States v. Lexington Mill &
Elevator Company, 232 U. S. 399, 409, 58 L. ed. 658,
661, L. B. A. 1915B, 774, 34 Sup. Ct. Rep. 337, it was
said that "the statute upon its face shows that the
primary purpose of Congress was to prevent injury
to the public health by the sale and transportation in
interstate commerce of misbranded and adulterated

— 17 —

UNITED STATES

foods. The legislation, as against misbranding, in-
tended to make it possible that the consumer should
know that an article purchased was what it purported
to be; that it might be bought for what it really was,
and not upon misrepresentations as to character and
quality. As against adulteration, the statute was in-
tended to protect the public health from possible in-
jury by adding to articles of food consumption poison-
ous and deleterious substances which might render
such articles injurious to the health of consumers. "
See also United States v. Antikamnia Co., 231 U. S.
654, 665, 58 L. ed. 419, 424, 34 Sup. Ct. Rep. 222,
Ann. Gas. 1915A 49; H. E. Report No. 2118, 59th
Cong. 1st Sess. 6-9. It is true that in executing these
purposes Congress has limited its prohibitions (Sav-
age v. Jones, 225 U. S. 501, 529, 532, 56 L. ed. 1182,
1193, 1194, 32 Sup. Ct. Rep. 715), anQ has specifically
defined what shall constitute adulteration or mis-
branding; but, in determining the scope of specific
provisions, the purpose to protect, the public health,
as an important aim of the statute, must not be
ignored.

Reading the provisions here in question in the light
of the context, we observe:

(a) That the term ''adulteration" is used in a
special sense. For example, the product of a dis-
eased animal may not be adulterated in the ordinary
or strict meaning of the word, but by reason of its
being that product the article is adulterated within
the meaning of the act. The statute with respect to
" adulteration " and "misbranding" has its own glos-
sary. We cannot, therefore, assume that simply be-
cause a prepared "food" has its formula and dis-
tinctive name, it is not, as such, "adulterated." In
the case of confectionery, it is plain that the article
may be "adulterated" although it is made in strict,
accordance with some formula and bears a fanciful
trade name, if in fact it contains an "ingredient

— 18 —

v. 40 BAEBELS AND 20 KEGS OF COCA-COLA

deleterious or detrimental to health, or any vinous,
malt or spirituous liquor or compound or narcotic
drug. " And the context clearly indicates that, with
respect to articles of food, the ordinary meaning of
"adulteration" cannot be regarded as controlling.

(b) The provision of Section 7, subdivision 5th,
assumes that the substance which renders the article
injurious, and the introduction of which causes * l adul-
teration" is an ingredient of the article. It must be
an "added" ingredient; but it is still an ingredient.
Component parts, or constituents, of the article which
is the subject of the described traffic, are thus not
excluded, but are included in the definition. The
article referred to in subdivision 5th is the article
sought to be made an article of commerce — the ar-
ticle which "contains" the ingredient.

(c) "Adulteration" is not to be confused with
"misbranding." The fact that the provisions as to
the latter require a statement of certain substances
if contained in an article of food, in order to avoid
"misbranding," does not limit the explicit provisions
of Section 7, as to adulteration. Both provisions are
operative. Had it been the intention of Congress to
confine its definition of adulteration to the introduc-
tion of the particular substances specified in the sec-
tion as to misbranding, it cannot be doubted that this
would have been stated, but Congress gave a broader
description of ingredients in defining "adulteration."
It is "any" added poisonous or "other added dele-
terious ingredient," provided it "may render such
article injurious to health."

(d) Proprietary foods, sold under distinctive names,
are within the purview of the provision. Not only
is "food" defined as including articles used for food
or drink, "whether simple, mixed or compound," but
the intention to include "proprietary foods" sold
under distinctive names is manifest from the provisos
in Section 8, which the claimant invokes. "Mixtures

— 19 —

UNITED STATES

or compounds" which satisfy the first paragraph
of the proviso are not only "articles of food,"
but are to enjoy the stated immunity only in case
they do "not contain any added poisonous or dele-
terious ingredients." By the concluding clause of
Section 8, it is provided that nothing in the act. shall
be construed to require manufacturers of "proprie-
tary foods" to disclose "their trade formulas" ex-
cept in so far as the provisions of the act "may re-
quire to secure freedom from adulteration or mis-
branding"; and the immunity is conditioned upon
the fact that such foods "contain no unwholesome
added ingredient." Thus the statute contemplates
that, mixtures or compounds manufactured by those
having trade formulas and bearing distinctive names
may nevertheless contain "added ingredients" which
are poisonous or deleterious, and if so, the article
is not taken out of the condemnation of Section 7,
subdivision 5th.

(e) Again, articles of food, including "proprietary
foods," which fall within this condemnation, are not
saved because they were already on the market when
the statute was passed. The act makes no such dis-
tinction; and it is to be observed that the proviso of
Section 8 explicitly refers to "mixtures or com-
pounds which may be now or from time to time here-
after known as articles of food." Nor does the length
of the period covered by the traffic, or its extent,
affect the question if the article is in fact adulterated
within the meaning of the act.

Having these considerations in mind we deem it
to be clear that, whatever difficulties there may be in
construing the provision, the claimant's argument
proves far too much. We are not now dealing with
the question whether the caffeine did, or might, ren-
der the article in question injurious; that is a separate
inquiry. The fundamental contention of the claim-
ant, as we have seen, is that a constituent of a food

— 20 —

v. 40 BAERELS' AND 20 KEGS OF COCA-COLA

product, having a distinctive name, cannot be an
" added " ingredient. In such case the standard is
said to be the food product itself which the name
designates. It must be, it is urged, this "finished
product " that is "adulterated." In that view, there
would seem to be no escape from the conclusion that,
however poisonous or deleterious the introduced in-
gredient might be, and however injurious its effect,
if it be made a constituent of a product having its
own distinctive name it is not within the provision.
If this were so, the statute would be reduced to an
absurdity. Manufacturers would be free, for example,
to put arsenic or strychnine or other poisonous or
deleterious ingredients with an unquestioned injuri-
ous effect into compound articles of food, provided
the compound were made according to formula and
sold under some fanciful name which would be dis-
tinctive. When challenged upon the ground that the
poison was an "added" ingredient, the answer would
be that without it the so-called food product would
not be the product described by the name. Further,
if an article purporting to be an ordinary food prod-
uct, sold under its ordinary name, were condemned
because of some added deleterious ingredient, it would
be difficult to see why the same result could not be
attained with impunity by composing a formula and
giving a distinctive name to the article with the criti-
cised substance as a component part. We think that
an analysis of the statute shows such a construction
of the provision to be inadmissible. Certain incon-
gruities may follow from any definition of the word
"added," but we cannot conclude that it was the in-
tention of Congress to afford immunity by the simple
choice of a formula and a name. It does not seem to
us to be a reasonable construction that in the case
of "proprietary foods" sold under distinctive names,
but it was not the purpose of the act to protect

— 21 —

UNITED STATES

articles of this sort regardless of their character.
Only such food products as contain "no unwholesome
added ingredient" are within the saving clause, and
in using the words quoted we are satisfied that Con-
gress did not make the proprietary article its own
standard.

Equally extreme and inadmissible is the suggestion
that where a "proprietary food" would not be the
same without the harmful ingredient, to eliminate
the latter would constitute an "adulteration" under
Section 7, subdivision 3d, by the abstraction of a
"valuable constituent." In that subdivision Congress
evidently refers to articles of food which normally
are not within the condemnation of the act. Congress
certainly did not intend that a poisonous or dele-
terious ingredient which made a proprietary food an
enemy to the public health should be treated as a
"valuable constituent," or to induce the continued
use of such injurious ingredients by making their
elimination an adulteration, subject to the penalties
of the statute.

It is apparent, however, that Congress, in using
the word "added" had some distinction in view. In
the Senate bill (for which the measure as adopted
was a substitute) there was a separate clause relating
to "liquors," providing that the article should be
deemed to be adulterated if it contained "any added
ingredient of a poisonous or deleterious character";
while in the case of food (which was defined as ex-
cluding liquors) the article was to be deemed to be
"adulterated" if it contained "any added poisonous
or other ingredient which may render such article in-
jurious to human health." Cong. Rec., 59th Cong.,
1st Sess., Vol. 40, p. 897. In explaining the provision
as to "liquors," Senator Heyburn, the chairman of
the Senate committee, having the bill in charge, stated
to the Senate (Id., p. 2647): "The word 'added,'
after very mature consideration by your committee,

— 22 —

v. 40 BARRELS AND 20 KEGS OF COCA-COLA

was adopted because of the fact that there is to be
found in nature's products, as she produces them,
poisonous substances to be determined by analysis.
Nature has so combined them that they are not a
danger or an evil — that is, so long as they are left in
the chemical connection in which nature has organ-
ized them; but when they are extracted by the arti-
ficial processes of chemistry they become a poison.
You can extract poison from grain or its products,
and when it is extracted it is a deadly poison; but if
you leave that poison as nature embodied it in the
original substances, it is not a dangerous poison or
an active agency of poison at all. So, in order to
avoid the threat that those who produce a perfectly
legitimate article from a natural product might be
held liable because the product contained nature's
poison, it was thought sufficient to provide against
the adding of any new substance that was in itself a
poison, and thus emphasizing the evils of existing
conditions in nature's product. That is the reason the
word 'added' is in the bill. Fusel oil is a poison. If
you extract it, it becomes a single active agency of
destruction, but allow it to remain in the combina-
tion where nature has placed it, and, while it is nom-
inally a poison, it is a harmless one, or comparatively
so." For the Senate bill, the House of Representatives
substituted a measure which had the particular pro-
visions now under consideration in substantially the
same form in which they were finally enacted into
law (Section 7, subdivision 5th; Section 8, subdivi-
sion 4, provisos). And the committee of the House of
Representatives, in reporting this substituted measure,
said (H. R. Report No. 2118, 59th Cong., 1st. Sess.,
pp. 6, 7, 11): "The purpose of the pending measure
is not to compel people to consume particular kinds
of foods. It is not to compel manufacturers to produce
particular kinds or grades of foods. One of the prin-
cipal objects of the bill is to prohibit in the manufacture

— 23 —

UNITED STATES

of foods intended for interstate commerce the ad-
dition of foreign substances poisonous or deleterious
to health. The bill does not relate to any natural con-
stituents of food products which are placed in the
foods by nature itself. It is well known that in many
kinds of foods in their natural state some quantity of
poisonous or deleterious ingredients exist. How far
these substances may be deleterious to health when
the food articles containing them are consumed may
be a subject of dispute between the scientists, but the
bill reported does not in any way consider the ques-
tion. If, however, poisonous or deleterious substances
are added by man to the food product, then the bill
declares the article to be adulterated, and forbids
interstate traffic. "

This statement throws light upfm the intention of
Congress. Illustrations are given to show possible
incongruous results of the test, but they do not out-
weigh this deliberate declaration of purpose; nor do
we find in the subsequent legislative history of the
substituted measure containing the provision any op-
posing statement as to the significance of the phrase.
It must also be noted that some of the illustrations
which are given lose their force when it is remem-
bered that the statutory ban (Section 7, subdivision
5th) by its explicit terms only applies where the added
ingredient may render the article injurious to health.
See United States v. Lexington Mill & Elevator Co.,
232 U. S. 399, 409, 58 L. ed. 658, 661, L. R. A. 1915B
774, 34 Sup. Ct. Rep. 337). It is urged that whatever
may be said of natural food products, or simple food
products, to which some addition is made, a " pro-
prietary food"' must necessarily be "something else
than the simple or natural article"; that it is an
"artificial preparation." It is insisted that every
ingredient in such a compound cannot be deemed to
be an "added" ingredient. But this argument, and
the others that are advanced, do not compel the

— 24 —

v. 40 BARRELS AND 20 KEGS OF COCA-COLA

adoption of the asserted alternative as to the saving
efficacy of the formula. Nor can we accept the view
that the word "added" should be taken as referring
to the quantity of the ingredient used. It is added
ingredient which the statute describes, not added
quantity of the ingredient, although, of course, quan-
tity may be highly important in determining whether
the ingredient may render the article harmful, and
experience in the use of ordinary articles of food
may be of greatest value in dealing with such ques-
tions of fact.

Congress, we think, referred to ingredients arti-
ficially introduced; these it described as " added. "
The addition might be made to a natural food product
or to a compound. If the ingredient thus introduced
was of the character and had the effect described,
it was to make no difference whether the resulting
mixture or combination was or was not called by a
new name, or did or did not constitute a proprietary
food. It is said that the preparation might be " en-
tirely new." But Congress might well suppose that
novelty would probably be sought by the use of such
ingredients, and this would constitute a means of
deception, and a menace to health from which the
public should be protected. It may also have been
supposed that, ordinarily, familiar food bases would
be used for this purpose. But, however the compound
purporting to be an article of food might be made up,
we think that it was the intention of Congress that
the artificial introduction of ingredients of a poison-
ous or deleterious character which might render the
article injurious to health should cause the prohibi-
tion of the statute to attach.

In the present case, the article belongs to a familiar
group ; it is a syrup. It was originally called ' ' Coca-
Cola Syrup and Extract." It is produced by melting
sugar, the analysis showing that 52.64 per cent, of the
product is sugar and 42.63 per cent, is water. Into

OK _

— £*tj

UNITED STATES

the syrup, thus formed by boiling the sugar, there are
introduced coloring, flavoring and other ingredients
in order to give the syrup a distinctive character.
The caffeine, as has been said, is introduced in the
second or third "melting." We see no escape from
the conclusion that it is an "added" ingredient
within the meaning of the statute.

Upon the remaining question whether the caffeine
was a poisonous or deleterious ingredient which
might render the article injurious to health, there
was a decided conflict of competent evidence. The
government's experts gave testimony to the effect
that it was, and the claimant introduced evidence to
show the contrary. It is sufficient to say that the
question was plainly one of fact which was for the
consideration of the jury. See 443 Cans of Frozen
Egg Product v. United Slates, 226 U. S. 172, 183, 57
L. ed. 174, 179, 33 Sup. Ct. Eep. 50.

Second. As to "misbraiuling. M In the second
count it was charged that the expression "Coca-
Cola" represented the presence in the product of the
substances coca and cola, and that it contained "no
coca and little if any cola." So far as "cola" was
concerned, the charge was vague and indefinite, and
this seems to have been conceded by the government
at the beginning of the trial. With respect to
"coca," there was evidence on the part of the gov-
ernment tending to show that there was nothing in
the product obtained from the leaves of the coca
plant, while on behalf of the claimant it was testified
that the material called "Merchandise No. 5" (one
of the ingredients) was obtained from both coca
leaves and cola nuts. It was assumed on the motion
for a peremptory instruction that there might be a
disputed question of fact as to whether the use of
the word "coca" is to be regarded "intrinsically and
originally" as stating or suggesting the presence of
"some material element or quality" derived from

— 26 —

v. 40 BARBELS AND 20 KEGS OF COCA-COLA

coca leaves, and it was also assumed that the evi-
dence might be deemed to be conflicting with respect
to the question whether the product actually con-
tained anything so derived. 191 Fed. 438, 439. But
these issues of fact were considered not to be mate-
rial. On this branch of the case, the claimant suc-
ceeded upon the ground that its article was within
the protection of the proviso in Section 8 as one
known "under its own distinctive name." 132 C. C.
A. 47, 215 Fed. 544.

Section 8 (ante, p. 1000), in its 4th specification as
to "food," provides that the article shall be deemed
to be " misbranded ' :' if the package containing it or
its label shall bear any statement, design or device
regarding the ingredients or the substances contained
therein, which * * shall be false or misleading
in any particular." Then follows the proviso in
question that an article not containing any added
poisonous or deleterious ingredients "shall not be
deemed to be 'misbranded' in the case of

"mixtures or compounds which may be now or from
time to time hereafter known as articles of food,
under their own distinctive names, and not an imi-
tation of or offered for sale under the distinctive
name of another article," if the name is accompanied
with a statement of the place where the article has
been produced.

A distinctive name is a name that distinguishes.
It may be a name commonly used as a generic name,
e. g. coffee, flour, etc. Where there is a trade descrip-
tion of this sort by which a product of a given kind
is distinctively known to the public, it matters not
that the name had originally a different significance.
Thus, soda water is a familiar trade description of
an article which now, as is well known, rarely con-
tains soda in any form. Such a name is not to be
deemed either "misleading" or "false" as it is
in fact distinctive. But unless the name is truly

— 27 —

UNITED STATES

distinctive, the immunity cannot be enjoyed; it does not
extend to a case where an article is offered for sale
"under the distinctive name of another article."
Thus, that which is not coffee, or is an imitation of
coffee, cannot be sold as coffee; and it would not be
protected by being called "X's Coffee." Similarly,
that which is not lemon extract could not obtain im-
munity by being sold under the name of "Y's Lemon
Extract." The name so used is not "distinctive,"
as it does not appropriately distinguish the product;
it is an effort to trade under the name of an article
of a different sort. So, with respect to "mixtures or
compounds," we 'think that the term "another arti-
cle" in the proviso embraces different compounds
from the compound in question. The aim of the stat-
ute is to prevent deception, and £hat which appro-
priately describes a different compound cannot secure
protection as a "distinctive name."

A "distinctive name" may also, of course, be
purely arbitrary or fanciful, and thus, being the trade
description of the particular thing, may satisfy the
statute, provided the name has not already been ap-
propriated for something else so that its use would
tend to deceive.

If, in the present case, the article had been named
"Coca", and it were found that the name was actu-
ally descriptive in the sense that it fairly implied
that the article was derived from the leaves of the
coca plant, it could not be said that this was "its
own distinctive name" if in fact it contained nothing
so derived. The name, if thus descriptive, would im-
part a different product from the one to which it was
actually affixed. And, in the case supposed, the name
would not become the "distinctive name" of a prod-
uct without any coca ingredient unless in popular
acceptation it came to be regarded as identifying a
product known to be of that character. It would fol-
low that the mere sale of the product under the name
"Coca", and the fact that this was used as a trade

— 28 —

v. 40 BARBELS AND 20 KEGS OF COCA-COLA

designation of the product, would not suffice to show
that it had ceased to have its original significance if
it did not appear that it had become known to the
public that the article contained nothing derived from
coca. Until such knowledge could be attributed to
the public, the name would naturally continue to be
descriptive in the original sense. Nor would it be
controlling that at the time of the adoption of the
name the coca plant was known only to foreigners
and scientists, for if the name had appropriate refer-
ence to that plant and to substances derived there-
from, its use would primarily be taken in that sense
by those who did know or who took pains to inform
themselves of its meaning. Mere ignorance on the
part of others as to the nature of the composition
would not change the descriptive character of the
designation. The same conclusion would be reached
if the single name ' ' Cola ' ' had been used as the name
of the product, and it were found that in fact the
name imported that the product was obtained from
the cola nut. The name would not be the distinctive
name of a product not so derived until in usage it
achieved that secondary significance.

We are thus brought to the question whether, if
the names coca and cola were respectively descrip-
tive, as . the government contends, a combination of
the two names constituted a "distinctive name"
within the protection of the proviso in case either of
the described ingredients was absent. It is said that
"coca" indicates one article, and "cola" another,
but that the two names together did not constitute
the distinctive name of any other substance or com-
bination of substances. The contention leads far.
To take the illustration suggested in argument, it
would permit a manufacturer, who could not use the
name chocolate to describe that which was not choco-
late, or vanilla to describe that which was not va-
nilla, to designate a mixture as " Chocolate-Vanilla, "

— 29 —

UNITED STATES

although it was destitute of either or both, provided
the combined name had not been previously used.
We think that the contention misses the point of the
proviso. A mixture or compound may have a name
descriptive of its ingredients or an arbitrary name.
The latter (if not already appropriated) being arbi-
trary, designates the particular product. Names,
however, which are merely descriptive of ingredients,
are not primarily descriptive names save as they ap-
propriately describe the compound with such ingre-
dients. To call the compound by a name descriptive
of ingredients which are not present is not to give it
"its own distinctive name," which distinguishes it
from other compounds, but to give it the name of a
different compound. That, in our judgment, is not
protected by the proviso, unless the name has
achieved a secondary significance afs descriptive of a
product known to be destitute of the ingredients in-
dicated by its primary meaning.

In the present case we are of opinion that it could
not be said as a matter of law that the name was
not primarily descriptive of a compound with coca
and cola ingredients, as charged. Nor is there basis
for the conclusion that the designation had attained
a secondary meaning as the name of a compound
from which either coca or cola ingredients were
known to be absent; the claimant has always insisted,
and now insists, that its product contains both. But
if the name was found to be descriptive, as charged,
there was clearly a conflict of evidence with respect
to the presence of any coca ingredient. We conclude
that the Court erred in directing a verdict on the
second count.

The judgment is reversed and the cause is re-
manded for further proceedings in conformity with
this opinion.

It is so ordered.

MR. JUSTICE MCREYNOLDS took no part in the con-
sideration or decision of this case.

— 30 —

v. 40 BARBELS AND 20 KEGS OF COCA-COLA

IN THE DISTRICT COURT OF THE UNITED
STATES OF AMERICA, EASTERN
DISTRICT OF TENNESSEE,
SOUTHERN DIVISION

No. 53

UNITED STATES
v.

FORTY BARRELS AND TWENTY KEGS OF
COCA-COLA.

DECREE.

This proceeding coining on to be heard, and it
appearing that the claimant, The Coca-Cola Com-
pany, without admitting the charges of either mis-
branding or adulteration, but expressly denying same,
but stating that it has made certain modifications in
the process of its manufacture, and on account of
which a decision either way of the question of fact
now involved would not be conclusive in any future
proceeding against its present product, has, in order
to dispose of this libel without the necessity of an-
other trial, and for the sole purpose of disposing of
this cause, withdrawn its claim and all other plead-
ings therein, and it appearing that the United States
and said claimant, by their attorneys of record, have
consented to the judgment, herein;

And it appearing that the monition issued in this
case has been heretofore returned, the usual proc-
lamation made, all legal requirements complied with
and that the default of all persons has been duly
entered after withdrawal by claimant of this claim
and defenses as aforesaid;

— 31 —

UNITED STATES

Now, therefore, the premises considered, it is, on
motion of the United States, Ordered, Sentenced and
Adjudged by" the Court, now here, and his Honor,
the District Judge, by virtue of the power and au-
thority in him vested, doth hereby order, sentence
and adjudge that the goods, wares and merchandise
seized in this proceeding be, and the same are hereby
forfeited to the United States and that the said The
Coca-Cola Company pay all costs of this proceeding;

It Is Further Ordered, Adjudged and Decreed that
the judgment of forfeiture shall not be binding upon
the said The Coca-Cola Company or its product ex-
cept as to this cause and the particular goods seized
herein, nor binding upon the claimant, or its product
as it shall relate to any other cause or proceeding of
any kind or character.

And It Is Further Ordered that the said goods,
wares or merchandise seized herein, to wit, the forty
barrels and twenty kegs of Coca-Cola, shall be re-
leased to the claimant upon said claimant paying
the costs above adjudged and giving sufficient bond,
conditioned that the product shall not be sold or
otherwise disposed of contrary to the provisions of
the Federal Food and Drugs Act, or the laws of any
State, Territory, district or insular possession of
the United States.

In open court, this 12th day of November, 1918.

(Signed) SANFQ'RD,

United States Judge.
O. K:

Wm. L. Frierson, Asst. Atty. General.

W. T. Kenerly, U. S. Atty.

J. B. Sizer, Atty. for Coca-Cola Co.

Harold Ilirsch, Attorney for The Coca-Cola Co.

— 32 —

v. 40 BARRELS AND 20 KEGS OF COCA-COLA

THE UNITED STATES OF AMERICA, \
EASTERN DISTRICT OF TENNESSEE, > ss.
SOUTHERN DIVISION. )

I, HORACE VAN DEVENTER, Clerk of the District
Court of the United States, within and for the Dis-
trict aforesaid, do hereby certify that the foregoing
printing and typewriting is a true, full, correct and
complete copy of the original final decree on file and
remaining of record in my office in the matter of The
United States v. 40 Barrels and 20 Kegs of Coca-
Cola, No. 53.

In Testimony Whereof I have hereunto set my hand
and seal of the said District Court, at Chattanooga,
Tennessee, this 20th day of April, A. D. 1918.

HORACE VAN DEVENTER,

Clerk,
By GEO. E. GRESHAM, Deputy Clerk.

— 33 —

THE COCA-COLA COMPANY

IN THE CIRCUIT COURT OF APPEALS,
SIXTH CIRCUIT

200 FEDERAL 720

No. 2235— IN EQUITY

THE COCA-COLA COMPANY, Appellant,

v.

THE GAY-OLA COMPANY, Appellee.

I

1. CORPORATION (517) — EQUITY (Sec. 339)— ANSWER
AS EVIDENCE— CORPORATION DEFENDANT.

A corporation cannot answer under oath in an eq uity suit, and
if its answer, when verified by an officer, is evidence under the equity
rule, it is not available to prove an affirmative defense.

2. TRADE-MARKS AND TRADE-NAMES (Sec. 75)— UN-
FAIR COMPETITION — GROUNDS FOR EQUITABLE
RELIEF.

In a suit for unfair competition, it is not necessary to show that
the immediate purchasers were deceived as to the origin of the
goods; but even if they thoroughly understood that they were buy-
ing the counterfeit, and not the genuine, the manufacturer of the
counterfeit will be enjoined from selling it to dealers with the
purpose and expectation that it shall be used by the dealers to
deceive the consumer.

3. TRADE-MARKS AND TRADE-NAMES (Sec. 70)— "UN-
FAIR COMPETITION"— INTENT.

The imitation by one manufacturer of the goods of another in
name, appearance, and marking and color of packages, even if
such similarities singly would not be unlawful, if accompanied
by good faith, may constitute "unfair competition," which will be
enjoined, where there is an actual purpose to deceive and defraud
purchasers.

(For other definitions, see Words and Phrases, vol. 8, p. 7174.)

— 34 —

v. THE GAY-OLA COMPANY

4. TRADE-MARKS AND TRADE-NAMES (Sec. 70)— UN-
FAIR COMPETITION — IMITATION IN PACKAGES
AND COLOR OF PRODUCT.

Defendant manufactured a syrup for use in soda fountains, etc.,
and colored it to exactly resemble complainant's, which was earlier
in the market, extensively advertised, and well known. The color-
ing matter was nonfunctional, being added to the compound solely
for coloring purposes and in the quantity necessary to give it
the color of complainant's. Defendant also colored its barrels and
kegs red, which was the distinctive color used by complainant, and
placed no marks thereon to indicate the place of manufacture.
It also sent circulars to owners of soda fountains, calling atten-
tion to the cheapness of its product, and advising them that con-
sumers could not tell it from complainant's. Held that, in view
of its evident purpose to deceive consumers, all such modes of
imitation should be enjoined, unless means were provided to pre-
vent such deception.

5. TRADE-MARKS AND TRADE-NAMES (Sec. 91)— AC-
TION FOR UNFAIR COMPETITION— PARTIES.

A manufacturer, whose business is injured by unfair competition
by the maker of a similar product, has a direct and independent
right of action to enjoin such competition; and the fact that it
supplies a part of its product to consumers in the territory where
defendant does business only through a second company, which
buys and re-sells it, and which is also injured by the acts of de-
fendant, does not make such second company a necessary party
to the suit.

0. MONOPOLIES (Sec. 21) — SUIT FOR UNFAIR COM-
PETITION—DEFENSES.

That a manufacturer sells its product through a system of con-
tracts tending to maintain monopoly in a trade-marked article
does not preclude it from maintaining a suit in equity to enjoin
unfair and fraudulent competition by another manufacturer of a
similar product.

(Unfair competition in use of trade-mark or trade-name, see notes
to Scheuer v. Muller, 20 C. C. A.; Lare v. Harper & Bros., 30
C. C. A. 367.)

Appeal from the Circuit Court of the United States
for the Western District of Tennessee. JOHN E.
Me CALL, Judge.

Suit in equity by The Coca-Cola Company against the
Gay-Ola Company. Decree for defendant, and
complainant appeals. Reversed.

— 35 —

THE COCA-COLA COMPANY

Complainant below, appellant here, sought protec-
tion against the unfair competition of defendant. The
bill of complaint carried as exhibits various letters and
circulars of defendant. The answer admitted these
letters and circulars, but denied any wrong in intent
or in law, in that connection. Depositions were taken,
and upon final hearing the bill was dismissed. It ap-
peared that complainant had put upon the market
very extensively a drink known as " Coca-Cola," made
under a secret formula, that this business had grown
up and increased and extended over a period of 20
years, and that the business had become extremely
valuable. Complainant's product was in the form of
an essence or concentrated liquor, designed to be
mixed with water at the time of consumption. This
essence had certain peculiarities of taste, color, etc.,
and was sold by complainant in barrels or kegs,
painted with a particular shade or red, and marked
with complainant's labels. Purchasers from com-
plainant were of two classes : first, the fountain pro-
prietors, who mixed the essence with carbonated water
and sold directly to the consumer; and second, the
bottling companies, who added the necessary carbon-
ated water, and put the product up in sealed bottles,
and then sold this article to retail dealers.

Defendant claimed to have discovered complainant 's
formula, and to be in fact making the same thing. It
adopted for its product and for its corporate name
the word ' ' Gay-Ola. ' ' It proceeded to bring this
product into public notice by some advertising under
its own name and by some other methods not criti-
cized by complainant — all to an extent not distinctly
shown by this record. It also wrote a series of letters
to bottling companies which were engaged in bottling
Coca-Cola, which letters were to the effect that it
would sell the bottler Gay-Ola for a less price than he
was paying for Coca-Cola; that the two articles were
just alike, and no one could tell the difference; that
the bottler could, if he wished,, substitute Gay-Ola for
Coca-Cola, and his patrons would never know it ; that

— 36 —

v. THE GAY-OLA COMPANY

several bottlers who had been handling Coca-Cola,
were doing this successfully and without discovery;
and that, if the bottler desired, defendant would ship
him Gay-Ola in plain, unmarked packages, so that his
dealings with defendant would not be observed. Sev-
eral of the letters in the record are of this substantial
effect, though they use different forms of expression,
and some only by hint and innuendo convey the invi-
tation to substitute and so to deceive the final pur-
chasers. Defendant also sent circular letters to soda
fountain proprietors, setting out the cheap price and
the merits of Gay-Ola and its identity with Coca-Cola,
and quoting from a testimonial 'of a soda fountain
proprietor: "No one can tell it from Coca-Cola, and
I sell it for Coca-Cola, and every one says I have the
best Coca-Cola in the city." On these letters, the de-
fendant added the postscript : * ' For your information,
beg to state that we are shipping twenty-one Coca-
Cola bottlers. < 'Nuf said/ "

Candler, Thomson & Hirsch, of Atlanta, Ga., and
Lehman, Gates & Martin, of Memphis, Tenn.,, for ap-
pellant.

Brown & Anderson, of Memphis, Tenn., for appellee.

Before WARRINGTON, KNAPPEN and DENISON,, Circuit
Judges.

DENISON, Circuit Judge (after stating the facts as
above). An answer under oath was not waived. The
answer filed is verified by one of the defendant's cor-
porate officers, and sets up, by way of affirmative de-
fense, that complainant comes with unclean hands and
cannot be heard, because its product is misbranded,
and because the name "Coca-Cola" is deceptive (Cali-
fornia Fig Syrup Co. v. Stearns [C. C. A. 6],, 73 Fed.
812, 816, 20 C. C. A. 22, 33 L. R. A. 56) ; but defendant
took no proofs. A corporation cannot answer under
oath, and even if its answer, when verified by an

— 37 —

THE COCA-COLA COMPANY

officer, is evidence under the equity rule, it is not avail-
able to prove an affirmative defense. Seitz v. Mitchell, 94
U. S. 580, 582, 24 L. Ed. 179 ; Ritterbusch v. Atchison,
etc., Ey. (C. C. A. 8) 198 Fed. 46, 50. These matters
must, therefore, be dismissed from consideration. And
see U. S. v. 40 Barrels, etc. (D. C.) 191 Fed. 431.

The substantial question seems to be whether com-
plainant has a remedy against defendant, or whether
the remedy is confined to proceedings against that re-
tail trade which is the immediate agent in deceiving
the ultimate purchaser. That the defendant has
planned and expected a benefit by the fraud so to be
practiced, and that it has deliberately furnished to
the dealers the material for practicing the fraud, with
the expectation and desire that the material be so used,
are perfectly plain — indeed, are hardly denied. The
ultimate wrong here contemplate^ is clearly to be
classified as unfair competition, within the definitions
adopted by the Supreme Court and by this court
(Elgin, etc., Co. v. Illinois Watch Co., 179 U. S. 665,
674, 21 Sup. Ct. 270, 45 L. Ed. 365; Merriam Co. v.
Saalfield, 198 Fed. 369; Everett Piano Co. v. Maus,
200 Fed. 718, opinion this day filed) ; and complain-
ant is entitled to such relief as a court of equity can
give, unless merit can be found in the defense that
the Gay-Ola Company had the right to make and sell
the article which it did sell, and that it is not respon-
sible for the fraud of its vendees.

(2) The interposition of equity in this class of cases
rests upon the inadequacy of the remedy at law; and
this inadequacy consists in the resulting multiplicity
of suits, impossibility of computing indirect damages
and probable irresponsibility of many wrongdoers. If
these reasons lead to the issuing of an injunction
against one of a large number of those who commit
the final tort, even more do they indicate the neces-
sity of an injunction against one who is conspiring
or co-operating to cause a large number of such
torts. Accordingly, we find it recognized by this
court that, in a suit for unfair competition,, it

— 38 —

v. THE GAY-OLA COMPANY

is not necessary to show that the immediate pur-
chasers were deceived as to the origin of the
goods ; but even if they thoroughly understand that
they are buying the counterfeit,, and not the genuine,
the manufacturer of the counterfeit will be enjoined
from selling it to dealers with the purpo.se and expec-
tation that it shall be used by the dealers to deceive
the consumer. Garett v. Garett (C. C. A. 6) 78 Fed.
472, 476, 24 C. C. A. 173 ; Royal Co. v. Eoyal, 122 Fed.
337,, 345, 58 C. C. A. 499. And see cases cited in Cyc.,
vol. 38, p. 778, notes 25 and 26 ; also Kalem v. Harper,
222 U. S. 55, 63, 32 Sup. Ct. 20, 56 L. Ed. 92. Under
the principles on which these cases were decided, we
are satisfied that an injunction must go against the de-
fendant. There is no room for it to shift the blame
to "tricky retailers," as in Eathbone Co. v. Champion
Co., 189 Fed. (C. C. A. 6) 26, 33, 110 C. C. A. 596, 37
L. R. A. (N. S.) 258; defendant is an accomplice,, if
not the principal, in the trick. With this conclusion
established, it is obvious that the injunction should
forbid all attempts directly or indirectly to encourage
or induce the dealer to make the fraudulent substitu-
tion; but complainant also asks that the injunction
extend to the use of barrels or kegs painted of the
same color as complainant 's, and to coloring the prod-
uct itself with the same color,, and to using any pack-
ages not plainly marked Gay-Ola. Whether the in-
junction should have this scope must be considered.
(3, 4) It is first to be observed that defendant is at
the best on a narrow ground of legality. The name
which it has adopted does not negative an intent to
confuse. The product is identical, both in appearance
and taste ; and the form of script used in printing
the "trade-mark" names is the same. Even if the
use of each of these items of similarity was lawful,
when accompanied by good faith and no intent to de-
ceive, they put the product near that dividing line
where good or bad faith is the criterion, and their
presence puts upon the user a burden of care to see
that deception does not naturally result. Conversely,

— 39 —

THE COCA-COLA COMPANY

when we find, as a fact, from the other conduct of the
defendant, that the underlying intent is to perpetrate
a fraud upon the consumer, this intent must color the
accompanying acts, and some which otherwise might
be innocent become guilty. So here. The red color
used by complainant on its barrels and kegs is not a
color which it discovered, or to which it had any ab-
stract monopoly; but this color has long been used by
complainant in a way that was exclusive in this trade.
No other manufacturer of analogous or competing
drinks uses that color of package, and its adoption
by defendant is one of the constituent parts of defend-
ant's scheme of fraud. So, too, with defendant's fail-
ure to mark its packages with anything to indicate the
place of manufacture. Ordinarily a man may mark
his goods, or not, as he pleases; but when he has his
marks and labels, which he uses onj occasions, and can
have no motive for sending out unmarked packages
except to aid in a fraudulent substitution, the act,
otherwise permissible, becomes forbidden.

The question remains whether the injunction should
go to the extent of forbidding defendant to sell Gay-
Ola with the identical color it now has ; that is, to
forbid its sale unless colored so as to distinguish it
from Coca-Cola. Defendant contends that such a pro-
hibition is inconsistent with its legal right to make and
sell an article which is in fact exactly like Coca-Cola.
This contention seems unpersuasive in view of defend-
ant's pleadings. In its answer it has abandoned the
claim of its advertising literature that Gay-Ola is made
exactly according to the Coca-Cola formula, and urges
that its product is a different and better compound.
It says that it has improved upon the formula of Coca-
Cola, while eliminating one of the elements, and that
its product is "greatly superior" to Coca-Cola. It
thus destroys a considerable part of the foundation
upon which rests its claimed right to adopt a color
which will be deceptive; but we pass by this consid-
eration.

The record justifies the conclusion that the color

— 40 —

v. THE GAY-OLA COMPANY

is "nonfunctional" to use the phraseology of the pat-
ent law. The bill alleges that Gay-Ola is "artificially
and unnecessarily" colored so as to look exactly like
Coca-Cola. The answer denies this in terms; but it
goes on to say that the color is produced by caramel,
which is in universal use for coloring purposes, and
is used by complainant for coloring Coca-Cola. There
is here no claim that caramel serves any other purpose
in either compound, except merely to give color, and
saying that it is one of the "component elements," as
one of the witnesses does, is saying nothing more. It
follows that the adoption, not only of caramel,, was
for the main and primary purpose of making the two
articles look just alike. In this connection it appears
that there is a great variety of coloring materials open
to the use of any manufacturer, and selections from
which are used by other manufacturers.

The record also requires the conclusion that defend-
ant's business had a substantial basis in this contem-
plated fraud. Doubtless it intended to try to make
a reputation and business for Gay-Ola on its own
merits in certain quarters, and perhaps eventually in
a general way; but it is clear that in the meantime,
and wherever it could, and as the easiest way of get-
ting a large business, it intended to have its product
sold as and for Coca-Cola. Under these circum-
stances we need not consider what the rule would be
if the color was the incidental result of an ingredient
used for some other purpose, nor yet what the rule
would be if the defendant had adopted even a wholly
unnecessary identity in color in connection with a
good-faith effort to sell its own goods on their own
merits. This court has not yet said that a case of
fraudulent competition can be made out solely by proof
of identity in a nonfunctional particular. Eathbone
Co. v. Champion, supra; Hilker Mop Co. v. U. S. Mop
Co., 191 Fed. 613, 112 C. C. A. 176. This case is not
even one of imitating matters of appearance in an
article of common manufacture, like furniture. Globe-
Wernicke Co. v. Macey Co., 119 Fed. 696, 704, 56 C. C.

— 41 —

THE COCA-COLA COMPANY

A. 304. We rest our conclusion here upon the fact that
the color was adopted in part as a means of aiding
the contemplated fraud, and that, if its adoption
was also in part innocent, there is here a confusion
caused by defendant; that the burden is therefore
upon defendant to see to it that ultimate fraud does
not result from this confusion; and that, so far as
defendant cannot safeguard this result, it may not
use the color. There is here marked — indeed close-
analogy to the rule of Westinghouse Co. v. Wagner
Co., 225 U. S. 604, 32 Sup. Ct. 691, 56 L. Ed. 1222,
and to the rule which requires an article which is likely
to deceive as to its origin to be distinctly tagged with
the name of the real producer. Merriam v. Saalfield,
supra. It goes without saying that this tag should be
in form adapted to reach the notice of the final pur-
chaser. }

As to the bottling part of the output, defendant
could apparently provide reasonably efficient means
of notice, and so probably prevent deception by see-
ing to it that all the bottles were stamped and labeled
prominently with the name of its product. As to the
soda fountain part of the output, we do not at present
see how deception could be efficiently prevented, save
by giving the product a nondeceptive color, although
some other satisfactory means may be brought to the
attention of the court below. The defendant should
be enjoined from selling Gay-Ola of a color the same
as or substantially similar to Coca-Cola, unless and
in so far as upon settlement of the decree below means
may be provided by which the ultimate consumer will
be fairly advised that he is not getting complainant's
Coca-Cola, but is getting something else.

(5) Two matters of affirmative defense require men-
tion. Jurisdiction in this case is founded on diverse
citizenship, the complainant being a Georgia corpora-
tion and the defendant a Tennessee corporation.
Complainant has a contract with the Coca-Cola Bot-
tling Company, of Chattanooga, a Tennessee corpora-
tion, by which complainant's entire product intended

— 42 —

v. THE GAY-OLA COMPANY

for bottling purposes in several states, including Ten-
nessee, is sold to this Tennessee corporation,, or to
other Coca-Cola bottling companies scattered over the
contract territory, and which are organized as sub-
sidiaries to the Tennessee corporation, and so it is
said that the injury done by defendant in inducing
these subsidiary bottling companies to substitute Gay-
Ola for Coca-Cola is an injury to the Tennessee cor-
poration, and it must be made a party, whereby the
court will be ousted of its jurisdiction. It is true that
the interests of the Tennessee corporation may be af-
fected by this litigation, and it may well be that, under
the special circumstances appearing by the record, the
Tennessee corporation would be a proper party. It
does not follow that it is a necessary party. If the
fraudulent substitution of Gay-Ola for Coca-Cola is
effected by these subsidiary bottling companies, and
thereby the deception of the purchasing public is con-
summated, complainant suffers, not only the direct
loss of its sale, but the indirect damage, through loss
of reputation and business, which may follow the sub-
stitution. These things give complainant a direct and
independent interest in preventing the fraud. The
fact that the Chattanooga Bottling Company has, for
itself and its subsidiaries, the exclusive right to handle
all of complainant's product which is devoted to bot-
tling purposes, does not differentiate the case from
the ordinary one of manufacturer, jobber and dealer.
The manufacturer cannot be unable to act for the pro-
tection of his goods in 'the retail field, unless he acts
through or jointly with the jobber.

(6) The other matter is this: All the subsidiary
Coca-Cola Bottling Companies act in their respective
localities under identical contracts with the Chatta-
nooga Bottling Company, which contracts have cer-
tain exclusive and price-restricting features which are
claimed to make them obnoxious to the Sherman Law ;
and it is said that the rule of Miles Medicine Co. v.
Parks, 220 U. S. 373, 408, 31 Sup. Ct. 376, 55 L. Ed. 502,
applies to this situation and requires the complaint

— 43 —

THE COCA-COLA COMPANY

to be dismissed. Without considering these premises,
it is sufficient to say that we do not so understand
that case. It holds that the manufacturer may not
have the aid of equity to enforce the very terms
of the contract system there involved ; it does not hold
that the remedies of the Dr. Miles Medical Company to
protect itself and the public from fraudulent competi-
tion would be destroyed or abridged because of the
existence of these contract restrictions; and we see
no reason why such a system of exclusive contracts,
not tending to establish a monopoly, except in con-
nection with that lawful measure of exclusion which
is inherent in a trade-mark and an established busi-
ness, should have the effect to deny to a complainant
that equitable remedy to which he otherwise would
be entitled. Indeed, it has been held that complain-
ant's participation in a violation bf the Sherman Act
(Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St.
1901, p. 3200]) does not destroy his right to protec-
tion against infringement on trade rights. Brown
Saddle Co. v. Troxel (C. C.) 140 Fed. 412; Weyman-
Bruton Co. v. Old Indian Snuff Mills (D. C.) 197 Fed.
1015.

The decree below must be reversed, and a decree
should be entered in accordance with the prayer of the
bill and this opinion.

The appellant will recover costs of both courts.

— 44 —

v. THE GAY-OLA COMPANY

IN THE CIRCUIT COURT OF APPEALS,
SIXTH CIRCUIT

211 FEDERAL 942

Nos. 2542, 2543— IN EQUITY

THE COCA-COLA COMPANY

v.
THE GAY-OLA COMPANY.

THE GAY-OLA COMPANY

v.
THE COCA-COLA COMPANY.

1. TRADE-MARKS AND TRADE-NAMES (Sec. 100) — UN-
LAWFUL COMPETITION — SALE OF DEFENDANT'S
PRODUCT— METHOD.

Where defendant put out a soda-water syrup in unlawful com-
petition with Coca-Cola, it was not entitled to sell its syrup in
bulk to bottlers on their agreement to put it up only in such bottles
as would cause it to reach the ultimate consumer in a form per-
mitted by a decree in a suit for unlawful competition; complain-
ant being entitled to restrain the marketing of defendant's product
except through such branches or agencies as would charge defend-
ant with their acts.

(Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A.
165; Lare v. Harper & Bros., 30 C. C. A. 376.)

2. TRADE-MARKS AND TRADE-NAMES (Sec. 100)— UN-
LAWFUL COMPETITION.

In a suit for unlawful competition, it is proper for the court
under certain circumstances in settling a decree forbidding unfair
competition to prescribe that certain forms may be used, and if
used will not constitute prohibited fraud.

— 45 —

THE COCA-COLA COMPANY

Appeals from the District Court of the United States
for the Western District of Tennessee. JOHN E.
Me CALL, Judge.

Suit in equity by The Coca-Cola Company against the
Gay-Ola Company. From a decree in favor of
complainant in a suit for unlawful competition,
both parties appeal. Modified.

W. D. Thomson and Candler, Thomson & Hirsch, all
of Atlanta, Ga., and Lehman, Gates & Martin, of
Memphis, Tenn., for Coca-Cola Co.

Leo Goodman and Hirsh & Goodman, all of Mem-
phis, Tenn., for Gay-Ola Co.

Before WARRINGTON, KNAPPER, ar^d DENISON, Circuit
Judges.

Per Curiam. Upon settlement of a decree in the dis-
trict court pursuant to our opinion in Coca-Cola Co.
v. Gay-Ola Co., 200 Fed. 720, 119 C. C. A. 164, the
questions arising were so disposed of as to cause both
parties to appeal. This makes it necessary for us to
consider and apply our former opinion.

The Gay-Ola Company offered twro plans by which
it thought its syrup might be kept in bulk at soda- foun-
tains, and there prepared in glasses and served, with-
out too much danger that it would be palmed off for
Coca-Cola, We agree with the district judge that
neither plan would be efficient, or within the fair mean-
ing of our opinion. Upon the appeal of the Gay-Ola
Company, the action below must be affirmed.

(1) The Gay-Ola Company claims it should be al-
lowed to sell its syrup in bulk to bottlers in different
parts of the country who will agree with it to put up
the syrup only in such bottles as will cause it to reach
the ultimate consumer in the form permitted by our
opinion.

The Coca-Cola Company insists that this would

— 46 —

v. THE GAY-OLA COMPANY

result in evasion of the intended restriction, since the
bottlers could then use or sell the syrup as they
pleased. We cannot see how it is possible for this
syrup, carrying what on the record must be called
the guilty color, to be sold by the Gray-Ola Company,
so that it loses title and control, and for the court at
the same time to retain practical power to enforce
against the Gay-Ola Company the existing restriction
upon the ultimate form of sale.

Obviously, by establishing its own bottling works in
different places, or by causing the bottling to be done
by its agent, whose acts are its acts, it can get its
product on the market in bottled form; if such
branches or agencies are impracticable, and the Gay-
Ola Company must either change the color or abandon
the business, this result must be charged to its fraud-
ulent inception — to a "congenital defect." We think
the decree should absolutely prohibit sales by the Gay-
Ola Company unless in the form prescribed for ulti-
mate use.

(2) The Gay-Ola Company presented a package
which it proposed to use for its. bottled product, in
order to differentiate from the Coca-Cola bottled
product, and asked the district judge to approve
and sanction this form by a paragraph in the decree.
He did so. The Coca-Cola Company appeals from this
action, and insists that the court cannot, in settling a
decree forbidding unfair competition, prescribe that
certain forms may be used, and ^ill not constitute
the prohibited fraud. This seems to be held in
the Seventh Circuit of Appeals. Hires v. Con-
sumer's Co., 100 Fed. 809, 41 C. C. A. 71; Williams
v. Mitchell, 106 Fed. 168, 45 C. C. A. 265; Sterling
Remedy Co. v. Spermine Med. Co., 112 Fed. 1,000, 50
C. C. A. 657. That we are not within the issues seems
hardly accurate,, because the pleading issues in such
suits are usually general and broad enough to include
all the specific forms of the device which have been
or may be used. It is clear that there are cases where
the problem presented by the new form for which

— 47 —

THE COCA-COLA COMPANY

authority is asked will be so far away from the ques-
tions which the court has considered, and which
proofs cover, that it ought not to be solved without
a new suit or a new proceeding; but there are many
cases where the court will be as ready as it ever can
be to decide such a question; and to refuse to do so,
and compel a new suit, is unnecessarily to prolong
uncertainty and litigation. Whether a given case
falls within one or the other class, or whether oppor-
tunity for additional and summary hearing will prop-
erly take the case from the second class into the first,
can safely be left to the discretion of the court. The
practice condemned in the Seventh Circuit was fol-
lowed by Judge Coxe at Circuit (Carlsbad v. Schultz
[C. C.] 78 Fed. 469, 472) ; and it seems to us equiv-
alent to what we think is very common in unfair com-
petition cases, i. e., providing that) defendant's pub-
lication or article shall contain, or shall be enjoined
unless it does contain a certain notice or label, for this
amounts to saying that if it does contain prescribed
notice it will not violate the decree. This has been
done (if not more generally) in the Second Circuit
(Waterman Co. v. Modern Co. [C. C. A.] 197 Fed.
534, 535, 117 C. C. A. 30) ; in the First Circuit (Mer-
riam Co. v. Ogilvie [C. C. A.] 170 Fed. 167, 168, 95
C. C. A. 423) ; and in this court (Merriam v. Saalfield,
198 Fed. 369, 378, 117 C. C. A. 245).

The question whether the court below rightly ap-
proved the form of bottle then presented needs no dis-
cussion. The Gay-Ola Company does not now insist
upon the one then authorized, but in open court be-
fore us presented another form, which counsel for the
Coca-Cola Company accepted as satisfactory. We
will effectuate their agreement by directing that the
decree authorize this new form, instead of the form
approved by the district judge. The decree below
will be re-entered in the same form it now is, except-
ing that the following two paragraphs will be sub-
stituted for the corresponding paragraphs in the entry
appealed from:

— 48 —

v. THE GAY-OLA COMPANY

"It is further ordered, adjudged, and decreed that
the said defendant, its directors, officers, agents,
servants, employes and assigns, and each and every
one of them, be and they are hereby perpetually en-
joined, restrained, and prohibited from selling, or dis-
posing of Gay-Ola of the same or substantially similar
color to Coca-Cola, except when the same is sold by it
in bottles, receptacles, or packages marked or labeled
prominently with the name of the defendant's product
and designed and intended to be sold and delivered
to the ultimate consumer in said original bottle, re-
ceptacle, or package, with said mark or label still re-
maining thereon.

"It is further ordered, adjudged and decreed that
the proposed bottling package presented to the Circuit
Court of Appeals upon its hearing of cases No. 2542
and No. 2543 does constitute a package by which the
ultimate consumer will be fairly advised that he is not
getting Coca-Cola; and that the sale of Gay-Ola in
such package to the ultimate consumer, or to others
in such package for sale to the ultimate consumer
thereof, will not constitute any violation of this de-
cree. The bottling package so authorized is a long-
necked clear-glass bottle having two complete annular
ribs and two partially complete such ribs blown in
the body of the bottle ; and having the word ' Gay-Ola '
in large capital letters blown in the shoulder thereof,
and the words 'The Improved Cola' in the body
thereof; being also provided with a cap or crown on
which the words ' Gay-Ola. It's Better,' are printed
in red. This package is further identified by filing
one of the same as an exhibit in this cause, and by
front and rear photographs thereof attached to this
decree, and made a part hereof. ' '

Neither party will recover costs against the other.

— 49 —

229 U. S. 614

No. 1020

THE GAY-OLA COMPANY, I VI it inner,

v.
THE COCA-COLA COMPANY, Respondent.

Petition for a Writ of Certiorari to the United States
Circuit Court of Appeals for the Sixth Circuit.

Denied on April 21, 1913.

MR. FREDERICK S. TYLER,
For Petitioner.

MESSRS. W. D. THOMSON and HAROLD HIRSCH,
For Respondent.

50 —

UNITED STATES OF AMERICA

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF TENNESSEE,

WESTERN DIVISION

In .The District Court of the United States, within
and for the Western Division of the Western District
of Tennessee, in the Sixth Judicial Circuit thereof.

Proceedings had in said court at a regular term
thereof, begun and held for its May Term, A. D. 1914,
at the United States Court House in the City of Mem-
phis, in said District, on to wit: the 4th day of July,
A. D. 1914, in the following cause, to wit:

THE GAY-OLA COMPANY,

v. >No. 662.

THE COCA-COLA COMPANY.

DECEEE ON MANDATE,

This cause came on this day to be heard upon the
motion of the complainant to enter a decree in accord
with the mandate of the United States Circuit Court
of Appeals, in this cause bearing date the 24th
day of April, 1914, which said mandate has hereto-
fore been entered of record and is now recorded in
Minute Book 1, at pages 211 and 212.

Now, Therefore, in obedience to the said mandate,
and in compliance with the directions therein con-
tained, and the opinion of the said Circuit Court of
Appeals herein, it is hereby ordered, adjudged and
decreed that the said final decree of this court
entered herein on the 8th day of July, 1913, in Minute
Book 1, at pages 69 to 71, be and the same is hereby

— 51 —

THE GAY-OLA COMPANY

modified, and there is eliminated therefrom and ex-
punged therefrom and for naugiit held so much of the
decree as is in the words and figures following, to wit :
"It is further ordered, adjudged and decreed
that the said defendant, its directors, officers,
agents, servants, employes and assigns, and each
and every of them, be and they are hereby per-
petually enjoined, restrained and prohibited from
selling or disposing of Gay-Ola of the same or
substantially similar color to Coca-Cola except
when the same is sold in bottles, receptacles or
packages, marked or labeled prominently with the
name of defendant's product, and designed and
intended to be sold and delivered to the ultimate
consumer in said original bottle, receptacle or
package, with said mark or label still remaining
thereon. ' ' I

"It is further ordered, adjudged and decreed
that the amber-colored, long-necked bottle, ex-
hibited by the defendant Gay-Ola Company in
open Court on this day, upon the hearing of the
motion for the entry of the decree on the mandate,
said bottle has the words ' Gay-Ola. It's better'
blown prominently into the bottle at the shoulder
thereof, and the same words printed in red on
the crown or cap which fits over the mouth of
the bottle is in the opinion of the Court a suffi-
cient stamping or labeling thereof within the
meaning and intent of this decree, to which part
of the adjudication the complainant there and
then, and does now and here except."
It is further ordered, adjudged and decreed that,
pursuant to the direction and mandate of the said
United States Circuit Court of Appeals herein, the
said decree as modified be and the same is hereby re-
entered and is made the decree of this Court in said
cause, and that this court does now proceed to adjudge
and decree, and does order, adjudge and decree as
follows, to wit :

"It is further ordered, adjudged and decreed

— 52 —

v. THE COCA-COLA COMPANY

that the defendant, its directors, officers, agents,
servants and employes, and assigns, and each and
every of them, be and they are hereby perpetually
enjoined, restrained and prohibited from in any-
wise, manner or way, directly or indirectly, con-
spiring with any customer of complainant, or
other person, whether proprietor of a soda foun-
tain or bottler, for the purpose of defrauding
complainant and from suggesting, intimating or
proposing to or agreeing with any such pro-
prietor of a soda fountain, or bottler or other
customer of complainant, or any other person or
persons whatsoever that they or any one or more
of them, may without fear of detection, substitute
the product or goods of the defendant for the
product or goods of complainant ; or from in any
manner inducing or attempting directly or in-
directly, to induce or encourage any bottler, soda
fountain proprietor, or any other person what-
soever to fraudulently substitute defendant's
product for that of complainant, or to cause the
same to be so fraudulently substituted, or from
soliciting or inducing any one or more of the cus-
tomers of complainant or any other person or
persons whatsoever, to purchase from defendant
its syrup with the idea, purpose or intention of
substituting defendant's syrup for the genuine
Coca-Cola, by any promise of secrecy in the entry
of orders therefor, or in the delivery of said
product. ' '

"It is further ordered, adjudged and decreed
that the said defendant, its directors, officers,
agents, servants, employes and assigns, and each
and every one of them, be and they are hereby
perpetually enjoined, restrained and prohibited
from selling, or disposing of Gay-Ola of the same
or substantially similar color to Coca-Cola except
when the same is sold by it in bottles, receptacle
or packages marked or labeled prominently with
the name of the defendant's product and designed

— 53 —

THE GAY-OLA COMPANY

and intended to be sold and delivered to the ulti-
mate consumer in said original bottle, receptacle
or package, with said mark or label still remain-
ing thereon."

"And it is further ordered, adjudged and de-
creed that the proposed bottling package pre-
sented to the Circuit Court of Appeals upon its
hearing of cases No. 2542 and 2543 does consti-
tute a package by which the ultimate consumer
will be fairly advised that he is not getting Coca-
Cola; and that the sale of Gay-Ola in such pack-
age to the ultimate consumer, or to others in such
package for sale to the ultimate consumer there-
of, will not constitute any violation of this decree.
The bottling package so authorized is a long-
necked, clear-glass bottle, having two complete
annular ribs and two partially complete such ribs
blown in the body of the bottle; and having the
words ' Gay-Ola ' in large capital letters blown in
the shoulder thereof and the words 'The Im-
proved Cola' in the body thereof; being also pro-
vided with a cap or crown on which the words
' Gay-Ola. It's Better,' are printed in red. This
package is further identified by filing one of the
same as an exhibit in this cause and by front and
rear photographs thereof attached to this decree,
and made a part hereof."

"It is further ordered, adjudged and decreed
that the said party, and each and all of them, are
further perpetually enjoined, restrained and pro-
hibited from painting any barrels or kegs in which .
the product of the defendant is delivered or
shipped, a dark red color similar to that hereto-
fore and now employed by complainant in the
painting of its kegs and barrels, or from shipping
or delivering any of defendant's said product in
any barrels or kegs so painted or colored as to be
similar in appearance to those of complainant. ' '

"It is further ordered that the complainant
have, and recover of defendant all costs expended

— 54 —

v. THE COCA-COLA COMPANY

in this cause and in addition thereto, costs ex-
pended in the United States Circuit Court of Ap-
peals which latter costs are taxed at $377.66,
which were the costs awarded to complainant
upon the first appeal of this cause, and all of which
said costs have been paid by the defendant Gay-
Ola Co., wherefore the said judgment for costs
is satisfied and no execution will issue thereon/'
It is further ordered and adjudged that each of the
parties hereto will pay all of their own costs expended
in the United States Circuit Court of Appeals in their
several respective appeals herein, which costs are
taxed as to the complainant Coca-Cola Company in
the sum of $— — , and which costs are taxed as to
the defendant in the sum of $— — , and for the costs
so taxed execution may issue as at law.

"It is further ordered, adjudged and decreed
that this cause be and it is hereby referred to
Frank S. Elgin, of Memphis, Tennessee, as
Special Master, who will ascertain from the proof
now on file and any that may be submitted:

"1st. What if any profits have been received
by the defendant's unlawful, unfair, inequitable
and fraudulent conduct and competition.

"2nd. What damages, if any, complainant suf-
fered by reason of defendant's unlawful, unfair,
inequitable and fraudulent conduct and competi-
tion.

' ' 3rd. The amount of goods or product sold by
defendant The Gay-Ola Company from the date
of its commencement in business to this date.

"4th.. What profits, if any, were derived by de-
fendant The Gay-Ola Company, as a result of sales
made by it and found by the Master in accordance
with the preceding direction."

It is further ordered, adjudged and decreed that the
Master proceed to report his findings to this Court.

Enter this :

McCALL, Judge.

— 55 —

UNITED STATES OF AMERICA,
SIXTH JUDICIAL CIRCUIT

DISTRICT COURT OF THE UNITED STATES,
WESTERN DISTRICT OF TENNESSEE

I, J. SAM JOHNSON, Clerk of the District Court of
the United States, for the Western District of Ten-
nessee, do hereby certify that the papers hereto at-
tached, are a full, true, perfect and correct copy of the
original decree on mandate, entered July 4, 1914, as
the same now appears of record and upon the files in
my offices, in the following cause, to wit :

THE COCA-COLA COMPANY,)

v. >No. 662.

THE GAY-OLA COMPANY. )

In Testimony Whereof, I have hereunto written my
name and affixed the Seal of said Court, at my office
in the City of Memphis, Tennessee, this 25th day of
August, A. D. 1922, and of the Independence of the
United States, the 147th Year.

J. SAM JOHNSON, Clerk.

AUTHENTICATION.

I, J. W. Ross, a Judge of said Court, do hereby
certify that J. SAM JOHNSON, whose genuine signature
appears to the foregoing certificate is, and was at the
date of the same, Clerk of said Court and that his at-
testation is in due form.

J. W. Ross,

Judge of the District Court of
the United States for the
District aforesaid.

— 50 —

IN THE CIRCUIT COURT

OF APPEALS

SIXTH CIRCUI

215 FEDERAL 527

Nos. 2439, 2440— JUNE 13, 1914

NASHVILLE SYRUP COMPANY,

v.
THE COCA-COLA COMPANY.

THE COCA-COLA COMPANY,

v.
NASHVILLE SYRUP COMPANY.

Suit in Equity by The Coca-Cola Company against

the Nashville Syrup Company. From the

decree both parties appeal.

J. B. SIZER, Chattanooga, Tennessee,
HAROLD HIRSCH, Atlanta, Georgia,
For Plaintiff.

PERKINS BAXTER, Nashville, Tennessee,
B. W. BRADFORD, Washington, D. C.,
For Defendant.

57 —

NASHVILLE SYRUP COMPANY

IN THE CIRCUIT COURT OF APPEALS,
SIXTH CIRCUIT

215 FEDERAL 527

Nos. 2439, 2440— JUNE 13, 1914

NASHVILLE SYRUP COMPANY,

v.
THE COCA-COLA COMPANY.

THE COCA-COLA COMPANY,

v.
NASHVILLE SYRUP COMPANY.

1. TRADE-MARKS AND TRADE-NAMES (Sec. 45) — DE-
SCRIPTIVE WORDS— EFFECT OF REGISTRATION.

The federal trade-mark statute does not directly operate to
grant a monopoly to one who rightfully registers a descriptive or
geographical word under the 10-year clause of Act Feb. 20, 1905,
c. 592 (U. S. Comp. St. Supp. 1911. p. 1401), Sec. 5. but removes
from words which had been exclusively used as a mark in inter-
state commerce for 10 years the bar or disability caused by their
descriptive or geographical character, and makes them, after their
registration, subject to exclusive appropriation with the same
effect, in the main, as if the disability had never existed.

2. TRADE-MARKS AND TRADE-NAMES (Sec. 59)— IN-
FRINGEMENT—"COCA-COLA."

The name Coca-Cola duly registered as a trade-mark for a syrup
used as a basis for carbonated drinks, and which had by more
then 10 years exclusive use prior to 1905 become the distinctive
name under which complainants' product was known, HELD
infrirged by the name "Fletcher's Coca-Cola" used on a similar
product.

— 58 —

v. THE COCA-COLA COMPANY

3. TRADE-MARKS AND TRADE-NAMES (Sec. 22)— VA-
LIDITY—DECEPTIVE NAMES.

Whether a claimed trade-mark is so descriptive of something
else as to be deceptive must be decided as of the time of its
adoption.

4. TRADE-MARKS AND TRADE-NAMES (Sec. 22)— VA-
LIDITY—DECEPTIVE NAMES.

The name "Coca-Cola" as applied to a flavoring syrup for car-
bonated drinks, containing about 2 per cent of a compound made
from coca leaves and cola nuts, HELD not so substantially and
really deceptive as to invalidate it as a trade-mark under the 10-
year clause of the act of 1905.

5. TRADE-MARKS AND TRADE-NAMES (Sec. 59) — IN-
FRINGEMENT.

Where a name has been exclusively used to designate the prod-
uct of a particular manufacturer for so long a time as to have
become identified with it in the minds of purchasers and to be a
valid trade-mark it cannot be used by another on a similar prod-
uct merely because ingredients are used in such other product
which make the name in a sense descriptive of it.

6. TRADE-MARKS AND TRADE-NAMES (Sec. 98)— SUIT
FOR INFRINGEMENT— ACCOUNTING FOR PROFITS.

On an accounting for profits for infringement of a trade-mark
by a 'ftona fide corporation, defendant is entitled to credit for the
salary paid its manager, who was a minority stockholder only,
as a part of its operating expenses.

7. APPEAL AND ERROR (Sec. 339)— TIME FOR APPEAL
—SUIT FOR INFRINGEMENT OF TRADE-MARK.

Where an interlocutory decree in favor of complainant was
entered in a suit for infringement of a trade-mark, directing a
reference for an accounting, a subsequent decree entered on the
report of the master, whether or not it refers to the interlocu-
tory decree in terms, has the effect of reaffirming it and render-
ing it final, and an appeal may be taken by the defendant at any
time within the statutory time after entry of such final decree on
which decision embodied in the interlocutory decree may be
reviewed. The fact that the appeal purports to be from the inter-
locutory decree, and that steps were taken therefor before such
decree became final, which were perfected afterwards, is not a
fatal irregularity.

Appeals from the District Court of the United States
for the Middle District of Tennessee. EDWARD T.
SANFOBD, Judge.

— 59 —

NASHVILLE SYRUP COMPANY

Suit in equity by The Coca-Cola Company against the
Nashville Syrup Company. From the decree both
parties appeal. Affirmed.

(For opinion below, see 200 Fed. 157.)

Coca is a South American shrub, from the leaves
of which cocaine, among other substances, is obtained ;
the cola tree grows in Africa, and from its nuts caf-
feine may be extracted. The use of these leaves and
these nuts by the natives in their respective countries,
and for the supposed stimulating qualities, had long
been known in this country, and before 1887 extracts
respectively from coca leaves and from cola nuts had
found a place in the pharmacopoeia. There was little
popular knowledge concerning tl^m. The extracts
were used only by dru-uists in compounding med-
icine. In 1887 Pemberton, an Atlanta druggist, regis-
tered in the Patent Office a label for what he called
"Coca-Cola Syrup and Extract." The plaintiff be-
low, the Coca-Cola Company, \vas organized as a cor-
poration in 1892, and acquired Pemberton 's formula
and label. Since that time, it has continuously manu-
factured and sold a syrup under the name, "Coca-
Cola," and, used as a basis for carbonated drinks, the
syrup, under this name, has had a large sale in all
parts of the country. In 1893 the Coca-Cola Com-
pany (herein called plaintiff) registered the name
"Coca-Cola" as a trade-mark, and again in October
of 1905, and pursuant to the act of February 20, 1905,
the name was registered by plaintiff as a trade-mark
under the 10-year proviso of that act. Plaintiff en-
joyed the exclusive use of the name from 1892 until
1910. In that year, J. D. Fletcher, now the active man-
ager of the Nashville Syrup Company (herein called
defendant), became interested with others in the
manufacture of a somewhat similar syrup being sold
under the name "Murfe's Cola." Later in that year
they changed the name of their product to "Murfe's

— 60 —

v. THE COCA-COLA COMPANY

Coca-Cola," and shortly afterwards, Mr. Fletcher be-
came sole owner of the business, and the product was
named " Fletcher's Coca-Cola," and has been sold by
him and his successor, the Nashville Syrup Company,
under that name. The bill of complaint herein claimed
for plaintiff a common-law trade-mark in the name,
and also claimed trade-mark rights by virtue of the
registration under the act of 1905. It also alleged
that the words of the name, if they ever indicated any-
thing other than plaintiff's product, had acquired a
secondary meaning limited to that article, and that
defendant was engaged in unfair competition. Juris-
diction sufficiently depended on diverse citizenship.

On the usual so-called final hearing the District
Judge concluded that plaintiff had a valid statutory
trade-mark under the act of 1905, and that it had been
infringed, and accordingly ordered an injunction and
a reference to ascertain the damages (200 Fed. 153,
157). The master reported his finding of damages, but
defendant's exception was sustained and a decree was
entered finding no damages. The defendant appealed
from the decree for injunction, and plaintiff appealed
because it failed to recover damages.

J. B. Sizer, of Chattanooga, Tenn., and Harold
HIT sell, of Atlanta, Ga., for plaintiff.

Perkins Baxter, of Nashville, Tenn., and D. W.
Bradford, of Washington, D. C., for defendant.

Before WASHINGTON, KNAPPEN, and DENISON, Circuit
Judges.

DENISON, Circuit Judge (after stating the facts as
above) :

(1) 1. Passing, for the present, without deciding,
the question whether the name Coca-Cola was, in
1887 or in 1892, so far descriptive of the article as to
be incapable of appropriation as a common-law trade-
mark, and passing, also without deciding, the question

— 61 —

NASHVILLE SYRUP COMPANY

whether the name, if primarily descriptive, had, be-
fore suit was brought in 1910, acquired a secondary
meaning, we come to the effect of the registration
under the act of 1905. The broad questions on which
defendant relied concerning the effect of this act have
been set at rest against defendant's contention, by the
decision of the Supreme Court in Davids Co. v. Davids,
233 U. S. 461, 34 Sup. Ct. 648, 58 L. Ed. 1046. In view
of the settled rule that the federal trade-mark statute
does not create any exclusive right, as the patent
statute does, but only recognizes a right which has
been already acquired by exclusive appropriation, and
then furnishes evidence and remedies (Trade-Mark
Cases, 100 U. S. 82, 25 L. Ed. 550; Hopkins on Trade-
Marks, Sec. 27; Hesseltine's Law of Trade-Marks,
p. 139), we do not regard the decision in the Davids
Case as holding that the statute directly operates to
grant a monopoly to one who rightfully registers
under the ten-year clause a descriptive or geograph-
ical word. We take it as holding that the statute was
not intended to permit, under this clause, an ineffect-
ive and useless registration, and so, in effect, hold-
ing that the statute removed from descriptive words
which had been exclusively used as a mark in inter-
state commerce for 10 years the bar or disability
caused by their descriptive character, and made them,
after that probation, subject to exclusive appropria-
tion with the same effect, in the main, as if the dis-
ability had never existed. Since the statute relates
primarily to registration, it may well be that the dis-
ability continues until registration, somewhat retro-
actively, removes it; that is not now important.
Neither is it important at present to know the exact
distinctions between the manufacturer's rights for-
merly existing under the secondary meaning theory
and those now existing under the statute. Since it ap-
pears that plaintiff had enjoyed the exclusive use of
the name ''Coca-Cola" for more than 10 years before
1905, and that there was due registration under the
act of 1905, it follows that plaintiff's exclusive rights

— 62 —

v. THE COCA-COLA COMPANY

as a trade-mark owner and as defined in the Davids
Case, are established.

Whether any exclusive rights which, in an essen-
tial part, depend on this statute can extend to the
regulation of strictly intrastate commerce, or whether
the effect must be limited to the field where Congress
had power to act, is an interesting question, which is
only suggested, but not presented, by this record.

It is not raised by assignment of error by the briefs.
We, therefore, give it no consideration.

(2) 2. We think the infringement sufficiently ap-
pears. Here, also, the Davids case is instructive. The
specific form in which the mark was registered in that
case was not considered important; and so it cannot
be here controlling, whether the words " Coca-Cola"
are with or without a hyphen, or are in script or in
plain letters. Neither is infringement avoided be-
cause defendant marks its bottles "Fletcher's Coca-
Cola." Not only does this qualification in the name
fail effectively to reach the ultimate consumer (Coca-
Cola v. Gay-Ola Co., 200 Fed. 720, 119 C. C. A. 164,
and Fed. 942, 128 C. C. A. 440), but a trade-mark right
which could be so avoided would be of no value. In-
deed, even under the secondary meaning theory, and
without the aid of the statute, such marking would not
sufficiently differentiate. Merriam v. Ogilvie, 170 Fed.
167, 95 C. C. A. 423, and cases cited on page 168;
Davids Co. v. Davids, supra. A case may arise where
the words registered under the statute are so wholly
and so merely descriptive and so unfit to carry an
arbitrary meaning indicating registrant's product
only that the use of the words coupled with de-
fendant's name as manufacturer would not infringe;
but this is not that case.

The words here involved were, if fairly "descrip-
tive" at all, not purely descriptive, and by 10 years'
exclusive use they had become the distinctive appella-
tion of plaintiff's product. To permit defendant to
use them in connection with his own name is not
to avoid or mitigate the wrong, but is rather an

— 63 —

NASHVILLE SYRUP COMPANY

aggravation, because of the false implication that
plaintiff has parted with the exclusive right. Jacobs v.
Beecham, 221 U. S. 263, 272, 31 Sup. Ct. 555, 55 L.
Ed. 729.

3. There remains the question whether the mark is
deceptive. Defendant does not expressly make this
point, but it is so bound up with the questions of how
merely descriptive the words are, and whether the
same words as used by defendant are only the right-
ful name of its product, that it must be decided. The
act of 1905 makes no exception in this respect, but
we assume that if the registered words clearly carried
deception, and if their use really represented to the
purchasers that the article was something essentially
different from the thing which they actually received,
the courts would not enforce any exclusive rights
under such registration, both because plaintiff would
come into court with uncloan hands (California Co. v.
Stearns, 73 Fed. 812, 816, 20 C. C. A. 22, 33 L. R. A.
56), and because such words could not be within the
fair contemplation of the act, when it refers to "any
mark * * * which was in actual and exclusive use as a
trade-mark," etc. The inquiry whether the mark is
deceptive and misleading is not dissimilar to the ques-
tion whether the same words constitute the distinct-
ive riame of another article, which question we have
considered in our opinion in United States v. Coca-
Cola Co., 215 Fed. 535, this day filed; but there may
be some such special force in the words "distinctive
name" found in the Pure Food Law that a mark
might be thought deceptive or misleading even though
it was not the "distinctive name of another article."
Hence, the point requires, in this case, further con-
sideration.

The argument is that the use of the name, "Coca-
Cola," implies to the public that the syrup is com-
posed mainly or in essential part of the coca leaves
and the cola nut; and that this is not true. The fact
is that one of the elements in the composition of the
syrup is itself a compound made from coca leaves and

— 64 —

v. THE COCA-COLA COMPANY

cola nuts. This element becomes a flavor for the com-
plete syrup, and is said to impart to it aroma and
taste characteristic of both. This flavoring element is
not in large quantity (less than 2 per cent), but it is
impossible to say that it does not have appreciable ef-
fect upon the compound. The question then is whether
the use of the words is a representation to the public
that the syrup contains any more of coca or of cola
than it really does contain.

(3) We think it clear that whether the claimed
trade-mark is so descriptive of something else as to be
deceptive must be decided at the time of adoption. It
cannot be that rights once lawfully acquired by ex-
clusive appropriation can be defeated by subsequent
progress of public knowledge regarding some other
substance of similar name. It is undisputed that dur-
ing the period shortly after 1892, while this name was
coming into public knowledge in connection with
plaintiff's product, little or nothing was popularly
known about either coca leaves or cola nuts, although
existing technical or cyclopedic publications gave in-
formation. It is not important whether Pemberton's
original form, "Coca-Cola Syrup and Extract/ ' was
so descriptive as to be deceptive if applied to a com-
pound not composed mainly of these ingredients. The
name in which trade-mark rights have been acquired
is the compound name "Coca-Cola," and this name,
may not, for all purposes, be the same as if it was
"Extract of Coca and Cola. "

Neither of these words alone had any absolute com-
plete meaning, but when the words were put together
to make the compound term, the ambiguity of mean-
ing was intensified. It coca was spoken of, the refer-
ence might be to the leaves, or to a decoction or to
an extract; "cola" might refer to the nuts or to a
powder or to a paste or a fluid; and so, when the
public first saw the name "Coca-Cola," it could not
know, as we said in the accompanying case, whether
the substance was medicine, food, or drink, or whether
it was intended to swallow, smoke, or chew. One who

— 65 —

NASHVILLE SYRUP COMPANY

had all the existing available information could only
infer that the new substance, whatever it was, had
some connection with these two foreign things. The
case would be somewhat different if each of the two
named elements wras itself definite and certain, but
neither is. To illustrate by more common substances :
Sage is a shrub, used in various ways; the almond is
a nut, eaten raw or prepared in numerous methods.
The compound name " Sage- Almond, " as a label,
would convey a very indefinite idea, if any, as to what
would be found when the package was opened; and, if
we assume that "Sage- Almond" turned out to be a
drink in connection with which sage leaves and al-
monds had been used, we have, in this illustration, a
close analogy to Coca-Cola ; yet this name, applied to
a soda fountain beverage, would not deceive the public
into supposing that it contained all jtlie virtues of sage
tea and all of the nourishment of the almond nut
meats. Such an article could honestly enough carry
the supposed name "Sage-Almond," and after 20
years' exclusive use of the name it would not still be
common property. A newcomer might rightfully sell
(e. g.) "Sage Tea with Almond Flavor"; he might
not take the peculiar, precise, and really arbitrary
compound name.

Plaintiff's counsel say, and so far as we can see
accurately say:

"The use of a compound name does not neces-
sarily— indicate that the article to which the name
is applied contains the substances whose names
make up the compound. Thus, soda water con-
tains no soda; the butternut contains no butter;
cream of tartar contains no cream; nor milk of
lime any milk. Grape fruit is not the fruit of the
grape; nor is bread fruit the fruit of bread; the
pineapple is foreign to both the pine and the
apple; and the manufactured food known as
Grape Nuts contains neither grapes nor nuts."
Many names which, as to the claim that they are so
descriptive as to be deceptive in the manner in which

— on —

v. THE COCA-COLA COMPANY

they are used, must be classified with Coca-Cola, have
been sustained as proper trade-marks. The Court of
Appeals of New York thought that * ' Sliced Animals ' '
was not merely descriptive, and was capable of ex-
clusive appropriation. Selchow v. Baker, 93 N. Y.
59, 45 Am. Rep. 169. The same court considered
"Bromo Caffeine." Defendant in that case insisted
that he could call his product " Bromo Caffeine"
because it was, and because plaintiff could not adopt,
as a trade-mark, the words so indicating the com-
position of the article. It was decided that while the
name indicated a compound caffeine with some bro-
mide, this indication was too vague and indefinite to
put the name beyond the forbidden limit. The dis-
cussion by Judge Peckham is thoroughly applicable to
the instant controversy. Keasbey v. Bromo, etc.,
Wks., 142 N. Y. 467, 474, 476, 37 N. E. 476, 37 N. E.
476, 40 Am. St. Rep. 623. A very similar case is that
concerning "Lacto Bacilline," application of La
Societe Ferment, 81 L. J. R. 724. In Ludington v.
Leonard, 127 Fed. 155, 62 C. C. A. 269, it was specially
urged upon the Circuit Court of Appeals of the Second
Circuit that the name "carroms," as applied to a
game resembling billiards was either too accurately
descriptive or too deceptive and misleading to be ex-
clusively used even under the secondary meaning
theory; but the contention was not upheld. Perhaps
the controlling distinction cannot be better expressed
than was done by Judge Showalter when he said
(American Fiber Chamois Co. v. De Lee [C. C.] 67
Fed. 329, 331) :

"If said words, as here combined, have any
sense, as descriptive of the class of goods in ques-
tion, it is not so pronounced, obvious, and usual
as to make said combined words, unfit, inappro-
priate or misleading, as a name, sign or mark of
origin of complainant's goods."
Cases like Standard Co. v. Trinidad Co., 220 U. S.
446, 31 Sup. Ct. 456, 55 L. Ed. 536, are sharply dis-
tinguishable. In that case it was found as a fact that

— 67 —

NASHVILLE SYRUP COMPANY

the word involved, "Rubberoid," was in common dic-
tionary use as an adjective, so that it was merely de-
scriptive. There was no room for it to carry any
arbitrary character in addition. This feature, with
its attendant distinction, is typical of the cases relied
upon by appellant. When it cannot be said that the
words "Coca-Cola," from lS<)f) to 190,"), gave to the
public "reason, accurate, and tolerably distinct knowl-
edge as to what the ingredients were," these cases re-
lied on by appellant lose their pertinence.

(4) We conclude that the name Coca-Cola as ap-
plied to plaintiff's product, while undoubtedly sug-
gestive, is not so substantially and really deceptive as
to invalidate the registered mark.

(5) Closely connected with what has been said, but
separately urged by defendant, is the claim that be-
cause in compounding its product ^defendant has used
coca leaves in considerable quantity and has used real
cola nuts to furnish the caffeine, it must be permitted
to call its article "Coca-Cola." This is really another
aspect of the matter already decided. If the name is
not so substantially and definitely descriptive (rather
than suggestive) as to be deceitful if employed where
the supposed description is not true, it follows that
the name is not so merely descriptive that its use re-
mains of common right after public acquiescence for
20 years in plaintiff's exclusive appropriation. Anal-
ogy is found in the illustration above quoted from
counsel. Assuming that "Grape Nuts" had been ex-
clusively used for a long period as the distinct name
of a particular maker's compound food, could a new-
comer rightfully take away a part of the established
trade by using the same name for his new compound,
just because it contained some nuts and was flavored
with grape juice? To us a negative answer seems
imperative, and no less so in the instant case.

(6) 5. On the accounting before the master, plain-
tiff did not seek damages as such, but asked an award
of the profits made by defendant. No question arises
except that presented by the fact that Mr. Fletcher,

— 08 —

v. THE COCA-COLA COMPANY

the general manager of defendant corporation, re-
ceived during the infringing period a salary of $2,700.
If defendant was entitled to credit for this salary as
a part of its operating expenses, there were no profits ;
if the item was an improper credit, there was a bal-
ance of profit to be recovered. Without question, the
defendant was an actual corporation organized in the
regular way for business purposes. It succeeded to
Mr. Fletcher's private business. He actively caused
it to be organized, and he became and continued presi-
dent and general manager. Two-thirds of the capital
was contributed by others, and Mr. Fletcher did not
have the control of the corporation, except by suffer-
ance of the majority of the stockholders. There is no
claim that the corporation was a mere sham or subter-
fuge brought into existence to cover up his individual
activities. Under these circumstances, and when the
only question is the amount of profits which the cor-
poration actually made, justice to the majority stock-
holders, if no other reason, requires that his fair and
reasonable salary be treated like any other disburse-
ment.

The District Judge was right in concluding that
there was no profit.

(7) 6. The plaintiff moved to dismiss defendant's
appeal from the interlocutory decree for injunction,
because the appeal was not taken within 60 days ; and,
as this motion raises a question of our jurisdiction,
it must be considered. The interlocutory decree award-
ing injunction and making a reference to take an ac-
count of damages was entered July 29, 1912. The
master's report was filed October 8th; defendant ex-
cepted, and the final order of the court on the excep-
tions was dated November 25th. This order made no
reference in terms to the order of July 29th, and was,
in terms, confined to the sustaining of one exception,
the over-ruling of another, an adjudication that the
plaintiff had failed to establish any damages, and a
disposition of the costs. November llth, the defend-
ant had claimed and had been allowed "an appeal

— 69 —

NASHVILLE SYRUP COMPANY

from the decree of July 29th,'.' and had assigned
errors thereon, but the citation was not issued nor the
bond on appeal approved until November 26th. Clearly
the decree of July 29th did not become final until the
order of November 25th. This last order might well
have repeated, in terms or by reference, the provi-
sions of the order of July 29th, so that there would
have been one complete, final decree, and we think
this would have been according to the most careful
practice; but the order of November 25th necessarily
has this effect, and operates to re-declare the adjudi-
cations which, up to that time, had been interlocutory
and within the control of the court, and which then,
for the first time, became final. The defendant then
had six months within which to appeal from any part
of this consolidated final decree. Loveland's Appel
late Jurisdiction, 467, 468; Grant Co. v. Laird Co.,
212 U. S. 445, 29 Sup. Ct. 332, 53* L. Ed. 591. Inas-
much as the appeal which defendant did take was not
perfected until after this final decree had been en-
tered, we think it may properly be treated as having
been taken from that decree. No prejudicial irregu-
larity comes from the fact that July 29th was named
as the date of the decree from which appeal was taken
and to which error was assigned. It would have been
absolutely accurate to appeal ''from the decree of
July 29th as re-entered on November 25th," and this
is the substantial effect of what was done. The same
result is reached by considering that the time for ap-
peal from the decree of July 29th (under section 11
of the Circuit Court of Appeals Act (Act March 3,
1891, c. 517, 26 Stat. 829; U. S. Comp. St. 1901, p.
552), as distinguished from one under section 129 of
the Judicial Code (Act March 3, 1911, c. 231, 36 Stat.
1134; U. S. Comp. St. Supp. 1911, p. 194) did not
begin to run until November 25th. That the appeal
wras prayed and allowed prematurely and before the
effective entry of the decree appealed from is not fatal
irregularity. For this purpose, these preliminary
steps may be treated as speaking as of the day when

— 70 —

v. THE COCA-COLA COMPANY

they became fully effective by the perfecting of the
appeal. The motion to dismiss must therefore be
denied.

Upon both appeals, the judgment below is affirmed.

— 7i —

THE COCA-COLA COMPANY

UNITED STATES CIRCUIT COURT

OF APPEALS,
EIGHTH CIRCUIT

238 FEDERAL 513

No. 4605— DECEMBER TERM, 1916

THE COCA-COLA COMPANY, Appellant,

v.

CHARLES G. BENNETT and WILLIAM B. BEN-
NETT, Co-Partners doing business under the
name of BENNETT MINERAL & DISTILLED
WATER COMPANY, Appellees.

1. TRADE-MARKS AND TRADE-NAMES, K. N. 68— RIGHT
OF OWNER OF TRADE-MARK — UNAUTHORIZED
BOTTLING OF GOODS.

A manufacturer of a syrup used with a carbonated water to
produce a beverage which was sold either at soda fountains or
in bottles, whose registered trade-mark covered both the syrup
and the beverage, but who bottled none of the beverage, having
contracted with others therefor under contracts requiring the
purchase of the syrup from the manufacturer and its preparation
under regulations to protect the quality, can prevent one who
has not the manufacturer's consent from bottling the syrup with
carbonated water, even in accordance with the regulations, and
selling it under the trade-mark, since otherwise the manufacturer
would have no means for protecting the quality of the goods sold
under his trade-mark.

2. TRADE-MARKS AND TRADE-NAMES, K. N. 68—
RIGHTS OF OWNER— SALES IN BULK.

When a manufacturer of an article of food or drink sells it in
bulk, and also puts it up in bottles bearing a distinctive trade-
mark, the purchaser of the article in bulk cannot legally bottle
it and affix the manufacturer's label to the bottle.

— 72 —

v. CHARLES G. BENNETT, etc.

3. MONOPOLIES, K. N. 21 — VIOLATION OF ANTI-
TRUST ACT— RIGHTS OF OWNER OF TRADE-MARK.

The invalidity, under Sherman Anti-Trust Act July 2, 1890,
c. 647, 26 Stat. 209 (Comp. St. 1913, Sees. 8820-8830), of con-
tracts by which the owner of a trade-mark covering both a syrup
and the beverage made therefrom granted the exclusive right to
bottle the beverage, does not affect the owner's right to prevent
the sale of the beverage under the trade-mark by one who bottled
it without consent.

Appeal from the District Court of the United States
for the District of Kansas. JOHN C. POLLOCK,
Judge.

Suit by The Coca-Cola Company against Charles G.
Bennett and another, co-partners doing business
as Bennett Mineral & Distilled Water Company.
Judgment for the defendants (225 F. 429), and
plaintiff appeals. Reversed and remanded, with
instructions to grant the injunction prayed for.

Frank F. Reed and Edward 8. Rogers, of Chicago,
Illinois (Candler, Thomson & Hirsch, Atlanta,
Georgia; Holmes, Yankey & Holmes, Wichita, Kan-
sas, Harold Hirsch, Atlanta, Georgia, and Charles G.
Yankey, Wichita, Kansas, on the brief), for appellant.

C. M. Williams, Hutchinson, Kansas, for appellees.

Before SANBOKN, ADAMS, and CARLAND, Circuit
Judges.

CARLAND, Circuit Judge, delivered the opinion of
the Court:

Appellant brought this action against appellees to
restrain an alleged trade-mark infringement and un-
fair competition. The trial court upon consideration
of the pleadings and certain stipulated facts dismissed
the complaint for want of equity. The facts upon
which appellant relies for relief are substantially as
follows :

— 73 —

THE COCA-COLA COMPANY

Appellant is a corporation of the State of Georgia,
with its principal place of business at Atlanta, in said
State. Appellees are co-partners doing business
under the firm name of Bennett Mineral & Distilled
Water Company at Hutchinson, Kansas. Appellant
is the owner of the trade-mark Coca-Cola and the busi-
ness of the manufacture and sale of two kinds of
syrup in connection therewith. The trade-mark covers
both the syrups and beverages made therefrom. It
was registered in the Patent Office of the United
States January 31, 1893, and again October 31, 1905.
The name Coca-Cola has been exclusively used by ap-
pellant and its predecessors since on or about the
year 1886, for the purpose of identifying the syrups
manufactured by it and its predecessors as their own
product and to distinguish it from all other articles
marketed and sold by others. TJhe name Coca-Cola
has been used by said appellant exclusively in con-
nection with its product by attaching and applying
said name to all barrels, kegs, jugs, bottles and other
receptacles containing said product and also by plac-
ing said name on labels in connection therewith.

Great care, skill and judgment has at all times been
used by appellant and its predecessors in the manu-
facture of said product, Coca-Cola, in order to protect
it from contamination and impurities and in the bar-
reling and putting up of said product so that the
product should reach the consumer in a clean and
wholesome condition and great pains have also been
taken by appellant that the bottles and other recep-
tacles in which the product has been placed are free
from dirt or objectionable matter, and great amounts
of time and labor have been expended by appellant in
marketing and selling its product under the name
Coca-Cola throughout the United States and in foreign
countries.

Coca-Cola is universally known and large sums
have been expended in advertising said product. The
product Coca-Cola is received by the consuming public
in two ways : over the soda fountain and in bottles.

— 74 —

v. CHARLES G. BENNETT, etc.

The syrup as such is not consumed by the public. At
the soda fountain it is mixed with carbonated water
and in bottles it is similarly mixed.

Appellant does not bottle its bottling product itself,
but its entire bottling product is sold under contract
to two Tennessee Corporations, viz. : Coca-Cola Bot-
tling Company and The Coca-Cola Bottling Company,
which in turn have given the privilege under contract
to certain other corporations and individuals to bottle
the syrup made for bottling purposes and to use in
connection therewith the trade-mark Coca-Cola.
Among the corporations having the privilege of bot-
tling is the Western Coca-Cola Bottling Company.

Any person or corporation receiving authority by
contract to bottle and sell bottled Coca-Cola in a pre-
scribed territory agrees to bottle the same in the fol-
lowing manner : To prepare and put in bottles using
a crown stopper thereon, a mixture of Coca-Cola syrup
and of water charged with carbonic acid gas under
pressure of not less than one atmosphere, said Coca-
Cola syrup and said water in said mixture to be used
in proportions of not less than one ounce of Coca-Cola
syrup to each seven or eight-ounce bottle of carbon-
ated water making thereof a carbonated drink of the
strength stated; said person or corporations also
agree not to add any compound, syrup, color, flavor-
ing matter, acid, headings, sugar or other sweetener
or any other preservative of any name or nature or
any other substance or ingredient whatsoever or any
water other than pure carbonated water commonly
called soda water, to the syrup furnished by the
plaintiff or to the water used for carbonating, and
also agrees not to use for said Coca-Cola syrup any
substitute whatever or to make any other drink and
sell same under the name Coca-Cola, Coca-Cola Bot-
tling Company and The Coca-Cola Bottling Company
of Tennessee take the entire output of the product of
the appellant, manufactured' for bottling purposes. No
other person, firm or corporation buys or can buy the
same from the appellant. The appellant is in no way

— 75 —

THE COCA-COLA COMPANY

directly or indirectly interested in the two Coca-Cola
Bottling Companies, above described, or interested in
any of their profits, but the contract between them pro-
vides that appellant shall retain control over its trade-
mark and have the rights of inspection and supervi-
sion for the purpose of securing the bottling of its
product according to contract as hereinbefore stated.

The two bottling companies with the consent of ap-
pellant have divided the territory described in the con-
tract between them, and said companies have entered
into contracts with other companies by which con-
tracts local bottling companies are given the exclusive
right within certain restricted territory to bottle and
sell the bottled product, Coca-Cola.

The Western Coca-Cola Company, organized under
the laws of the State of Illinois, is one of these com-
panies. Its territory embraces several states, includ-
ing Kansas. The Bottling Companies do not enter
into a contract with more than one person, firm or
corporation in the territory allotted to any local bot-
tler. The contracts between the two Coca-Cola 'Bot-
tling Companies sometimes referred to as the parent
companies and the various local bottling com-
panies are always approved and consented to by
the appellant. The appellant has no financial interest
in the local bottling plants. The appellant sells its
bottling product to the parent bottling companies de-
scribed and will not accept any order for said product
except from these two bottling companies, and no
other person, firm or corporation can buy Coca-Cola
syrup from appellant for bottling purposes than the
companies above described. The local bottling com-
panies are supplied direct from the factories of the
parent bottling companies, but the order comes to the
appellant through the parent bottling companies and
these bottling companies pay appellant for the bot-
tled product so distributed to the local bottling plants.
The shipments of bottling syrup are made both in in-
terstate and intrastate commerce aggregating a large
volume of business.

— 76 —

v. CHARLES G. BENNETT, etc.

The defendants are using the trade-mark Coca-Cola
on a bottled product without the authority or permis-
sion of appellant. The product so bottled by defend-
ants is the Coca-Cola syrup as manufactured by ap-
pellant for bottling purposes bought by the defend-
ants partly from the Western Coca-Cola Bottling
Company and partly from vendees of appellant and
in the open market. The said Coca-Cola syrup is
mixed by defendants with carbonated water and sold
as a beverage under the trade-mark Coca-Cola and
defendants have no contract with or authority from
the Coca-Cola Bottling Companies or appellant for
bottling the same and no restriction as to the use of
said syrup is agreed upon by defendants with the
jobbers or wholesalers from whom they purchase said
syrup. All of the Coca-Cola which defendants have
manufactured and sold has been made from the Coca-
Cola syrup manufactured and sold by appellant in the
usual and ordinary way which appellant authorizes
and permits consumers and patrons to manufacture
and sell Coca-Cola as a beverage. Paragraph 16 of
the complaint which is admitted by the answer is as
follows :

4 'That by reason of the premises your orator
is rightfully and equitably entitled to the sole
and exclusive use of the trade-mark 'Coca-Cola'
and to protection in the use thereof as applied to
its products, and in equity and good conscience to
protection against all manner and form of fraud-
ulent use and imitation of said trade-mark, and
that the public generally has at all times acknowl-
edged and acquiesced in the aforesaid rights of
your orator and of your orator's predecessors
aforesaid in and to said trade-mark."
The question arising on the facts as above stated
is: Have the defendants without the authority or
permission of the appellant the right to manufacture
Coca-Cola as a beverage by mixing the bottling syrup
of appellant with carbonated water and sell the same
to the public under the trade-mark Coca-Cola?

— 77 —

THE COCA-COLA COMPANY

The trade-mark Coca-Cola covering as it does both
the bottling syrup and the beverage made therefrom
by adding carbonated water, entitled the appellant to
the exclusive right to manufacture and sell its syrup
and also to make and sell the beverage known as
Coca-Cola. Certainly if the appellant has the exclu-
sive right to make and sell under its trade-mark the
beverage called Coca-Cola, it can grant the right and
privilege to others to do that which it might do it-
self, and it necessarily results from this state of the
case that no person or corporation can manufacture
the bottled beverage called Coca-Cola and sell the
same under appellant's trade-mark without its con-
sent or authority. It is true that the appellant has
no money directly invested in the business of the bot-
tling companies, but it is very plain that as the syrup
manufactured by the appellant is not itself consumed
by the public as such there could be no sale of the
syrup unless there was a sale of the beverage made
therefrom, and so it is apparent that the appellant
is directly and greatly interested in having its bot-
tled product delivered to the consuming public under
such circumstances and in such manner as will pro-
mote the sale thereof.

It is also apparent that the only way the appellant
can secure the right to supervise the manner of the
bottling of its product is to refuse to grant the priv-
ilege of bottling except upon condition that certain
prescribed regulations are complied with. It would,
therefore, seem to be too plain for argument that both
under the law of trade-mark and upon sound reason
defendants in the case at bar may not without the
consent and authority of the appellant manufacture
the bottled beverage and sell the same under the ap-
pellant's trade-mark, Coca-Cola.

Counsel for the defendants argue that as it appears
that defendants use the bottling syrup of the appel-
lants and mix the same with carbonated water in the
same way that appellant authorizes other persons and

— 78 —

v. CHARLES G. BENNETT, etc.

corporations to do, they have the right to manufac-
ture and sell under the appellant's trade-mark. But
suppose that other persons and corporations without
number should be of the same opinion, it would result
that appellant would have no control over the integrity
of its trade-mark, which is its guaranty that the bev-
erage is as represented, and its business might be
ruined. It is true the defendants might sell the bot-
tling syrup which they buy under the appellant's
trade-mark, but since they change the syrup into a bev-
erage without the permission and authority of appel-
lant, they have no right to sell the same under ap-
pellant's trade-mark. The argument advanced is also
faulty as it would permit persons other than the owner
of the trade-mark to control its use.

The law seems to be settled that when a manufac-
turer of an article of food or drink sells it in bulk and
also puts it up in bottles the latter bearing a distinctive
trade-mark, a purchaser of the article in bulk will be
guilty of unfair competition and be enjoined from bot-
tling and affixing the manufacturer's distinctive label
upon the goods bottled by him.

Coca-Cola Company v. J. GL Butler & Sons, 229
Fed. 224; Krause v. Peebles Co., 58 Fed. 585, 592;
People v. Luhre, 105 N. Y. 377 (89 N. E. 171) ; Hen-
nesy v. White, Cox Manual Trade-Mark Cases 377;
Brown on .Trade-Marks, Sections 910, 759 and author-
ities there cited.

One of the reasons for .this rule is that: "Unless
the manufacturer can control the bottling he cannot
guarantee that it is the genuine article prepared by
him." And as said by Judge TRIEBER in Coca-Cola
Company v. J. Gr. Butler & Sons, supra, "To this may
be added that he cannot tell whether it is bottled in
so careful a manner as essential to the preservation
of the article and the maintenance of its good reputa-
tion."

It would seem that to uphold the contention of
counsel for the defendants would be to destroy all

— 79 —

THE COCA-COLA COMPANY

the value that the appellant's trade-mark has. . It
would open the door to any person or corporation to
adulterate the beverage sold as Coca-Cola without any
right in the appellant to prevent it. "The greatest
value of a trade-mark is the reputation established
by the excellence of the article and the knowledge and
appreciation of that fact by the consuming public.
An article without any merit can derive no benefit
from a trade-mark and only a temporary benefit from
the most extensive advertisement. It is like the value
of a 'good will' in an established going concern. It
depends upon the successful operation of the business.
Without that there is no value to it. Who would pay
for the good will of a business conducted at a loss!"
Coca-Cola Company v. Butler & Sons, supra.

The cases of Kussia Cement Conipany v. Frauenher,
133 Fed. 518, and Apollinaris Company v. Scherer,
27 Fed. 18, are cited as sustaining the position of
counsel for defendants, but an examination of these
cases shows that in the Cement Case the same cement
without any addition or subtraction was re-sold under
the trade-mark name. If the defendants in this case
had simply re-sold the syrup it would be within the
reasoning of the case cited, but they did not do that.
They changed the syrup into a beverage and they say
that they changed it in the same manner that the ap-
pellant authorized other persons to do. But the
trouble with this argument is that it destroys appel-
lant's exclusive right to its trade-mark and the result-
ing rights, to say who may use it.

In the Apollinaris Case the same water without
subtraction or addition was sold under its true name.
Without prolonging the discussion further we do not
think the defendants have the right to manufacture
and sell Coca-Cola under the trade-mark name of ap-
pellant without its consent. Counsel for defendants
further urge that the contracts which appellant has

— 80 —

v. CHARLES G. BENNETT, etc.

made with the Tennessee corporations and which the
Tennessee corporations have made with appellant's
consent with local persons and corporations are in vio-
lation of the Sherman Law.

The trial court seems to have based its ruling in
dismissing the complaint partly upon this proposition,
it appearing to that court that this suit was one to
enforce these contracts. We do not think the validity
of the contracts are in anywise brought into question
on this record. The appellant simply claims that the
defendants have no right to manufacture and sell
Coca-Cola under appellant's trade-mark without its
consent and our decision in this case goes no further
than to hold that the claim of appellant is well
founded. We do not decide that the whole or any part
of the contracts made by appellant with the bottling
companies are valid. The granting of the consent of
appellant to the defendants to manufacture and sell
the product Coca-Cola under its trade-mark could be
manifested without the contracts mentioned in the
evidence. It will be time enough to decide as to the
validity of the contracts when a suit arises in which
their validity is involved, and when some person is
sued who has a contract. Manifestly, if the consent
and authority of appellant is necessary in order to
manufacture and sell Coca-Cola under its trade-mark,
then appellant has the right to impose any such
reasonable condition in the granting of such consent
as will protect the integrity of the trade-mark.

It results from what we have said that the judg-
ment dismissing the complaint should be reversed and
the case remanded with instructions to the trial court
to grant the injunction prayed for. The question of
damages was not considered in the lower court and
that question will be left open to be dealt with as law
and justice may require.

ADAMS, Circuit Judge, concurred in the decision of

— 81 —

THE COCA-COLA COMPANY

this case, but deceased before the opinion was pre-
pared.

Filed December 8, 1916.
A true copy.
Attest :

JOHN D. JORDAN,
Clerk U. S. Circuit Court of Appeals,

Eighth Circuit.

— 82 —

v. CHARLES G. BENNETT, etc.

THE COCA-COLA COMPANY, Plaintiff,

v.

CHAS. G. BENNETT and WILLIAM E. BENNETT,
Co-Partners doing business under the name of
BENNETT MINERAL & DISTILLED .WATER
COMPANY, Defendants.

FINAL DECREE.

The mandate of the Circuit Court of Appeals of the
Eighth Circuit having been received in the above stated
case, and after a consideration thereof it is ordered,
adjudged and decreed that the defendants, Chas. G.
Bennett and William R. Bennett, Co-Partners doing
business under the name and style of Bennett Mineral
& Distilled Water Company they and each of them,
and all their associates, salesmen, servants, clerks,
agents, workmen, employes, and every person claim-
ing or holding under or through the said defendants
or in any way connected with their business, are
hereby perpetually enjoined and restrained from in
any way or manner making or selling their product
in such a way as to pass off the same as and for the
product of The Coca-Cola Company, and from using
in any form whatsoever the name "Coca-Cola" as
applied to any drink, or from using any name suffi-
ciently similar to the name "Coca-Cola" as applied
to any drink so as to cause deceit, and from doing any
acts in any manner or form in the premises as is cal-
culated to deceive.

— 83 —

THE COCA-COLA COMPANY

It is further decreed and adjudged that the Coca-
Cola Company has the sole and exclusive right to the
use of the mark or name " Coca-Cola" in connection
with a drink or beverage, and further, that The Coca-
Cola Company has the sole and exclusive right to the
use of the peculiar and individual design or form of
writing the name " Coca-Cola " as described and set
out in the petition in the above stated case.

It is further ordered, adjudged and decreed that
the said Chas. G. Bennett and Wm. E. Bennett, de-
liver up to The Coca-Cola Company all labels, boxes,
advertising matter, stoppers and crowns in their pos-
session, which bear the name "Coca-Cola" alone, or
in association with any other words, and also all of
its product in any form sufficiently similar to the
product of the Coca-Cola Company to cause deception.

It is further ordered, adjudged and decreed that
the plaintiff have judgment against the defendants in
the sum of One Hundred ($100.00) Dollars for dam-
ages caused by the acts of defendants complained of
in the petition, for which amount execution may issue.

It is further ordered that the defendants, Chas. G.
Bennett and William R. Bennett pay the costs accrued
in this case, and that the plaintiff recover of and from
said Bennett the cost of this suit to be taxed and have
execution therefor.

This 16th day of March, 1917.

(Sd) JOHN C. POLLOCK,

U. S. District Judge.

— 84 —

I

IN THE CIRCUIT COURT
OF APPEALS

FOURTH CIRCUIT

No. 1729— MARCH 3, 1921

THE COCA-COLA COMPANY,

v.
OLD DOMINION BEVERAGE CORPORATION.

Appeal from the District Court of the United States
for the Eastern District of Virginia.

EDWARD S. ROGERS, Chicago, Illinois,
HAROLD HIRSCH, Atlanta, Georgia,
(C. V. MEREDITH, of Richmond, Virginia,
CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
FRANK F. REED, Chicago, Illinois, on the brief),
For Appellant.

ROBERT E. SCOTT, Richmond, Virginia,
L. 0. WENDENBTJRG, Richmond, Virginia,
(T. GRAY HADDON, Richmond, Virginia, on the
brief),

For Appellee.

— 85 —

THE COCA-COLA COMPANY

IN THE CIRCUIT COURT OF APPEALS,
FOURTH CIRCUIT

271 FEDERAL 600

No. 1729— MARCH 3, 1921

THE COCA-COLA COMPANY,

v.
OLD DOMINION BEVERAGE CORPORATION.

I

1. TRADE-MARKS AND TRADE-NAMES 45 — DESCRIP-
TIVENESS IMMATERIAL WHEN REGISTERED
UNDER 10-YEAR PROVISO.

It is immaterial that a trade-mark registered under the 10-
year proviso of the Federal Trade-Mark Law (Comp. St. 9400)
may once have been descriptive or may still be to some decree.

2. TRADE-MARKS AND TRADE-NAMES 41 — WHEN
REGISTERED TRADE-MARK AND INFRINGEMENT
USED IN INTERSTATE COMMERCE, PROTECTION
OF FEDERAL ACT MAY BE INVOKED.

\\ here the owner of a registered trade-mark and an infringe-
ment botli used their marks in interstate as well as intrastate
commerce, the trade-mark owner may invoke the federal statutes,
no matter how narrow the construction of the protection that
they can constitutionally give.

3. COURTS 292 — COMMON-LAW RIGHTS IN TRADE-
MARK ENFORCEABLE IN FEDERAL COURT WHEN
DIVERSE CITIZENSHIP AND SUFFICIENT AMOUNT
IN CONTROVERSY EXISTS.

Where the parties to a suit for infringement of a trade-mark
and unfair competition are corporations of different states the
amount in controversy exceeds $3,000, a United States court may
enforce plaintiff's common-law rights in its trade-mark and against
unfair competition.

— 80 —

v. OLD DOMINION BEVERAGE CQBPORATIQN

4. TRADE-MARKS AND TRADE-NAMES 79 — INJUNC-
TION, BEING APPROPRIATE RELIEF, JUSTIFIES
SUING IN EQUITY.

In a suit for infringement of a trade-mark and unfair compe-
tition, an injunction is an appropriate part of the relief sought
and hence the complaint is properly brought on the equity side of
the court.

5. TRADE-MARKS AND TRADE-NAMES 53 — CANNOT
BE USED BY ONE MANUFACTURING BEVERAGE
SIMILAR TO OWNER'S BEVERAGE THOUGH UN-
PATENTED.

Though any one, if he can, may manufacture a beverage similar
to an unpatented beverage sold under a trade-name, and claim
that it is not only as good as that sold under the trade-name, but
in fact is the same thing, he cannot, in so doing, use the trade-
mark to the damage of its owner.

0. TRADE-MARKS AND TRADE-NAMES 59 — DEFEND-
ANT HELD TO HAVE INFRINGED PLAINTIFF'S
TRADE-MARK AND BEEN GUILTY OF UNFAIR
COMPETITION IN SALE OF BEVERAGE UNDER
SIMILAR NAME.

Where plaintiff's beverage had been on sale under its trade-
name, "Coca-Cola," registered as a trade-mark, long before defend-
ant began business, and its business had grown in great propor-
tions, defendant, by adoptirg the name "Taka-Kola," uniting the
words by a hyphen and displaying them in script, as did plaintiff,
and using a color scheme on the crown corks of its bottles making
them indistinguishable at a distance of a few feet, was guilty
of unfair competition and infringement of plaintiff's trade-mark,
especially where the similarity of names had suggested to
unscrupulous retailers the mixing of the two products and the sale
of the mixed products as Coca-Cola.

Appeal from the District Court of the United States
for the Eastern District of Virginia, at Eichmond.
HENRY CLAY MCDOWELL, Judge.

Suit by the Coca-Cola Company against the Old
Dominion .Beverage Corporation. From a decree
dismissing the bill of complaint, plaintiff appeals.
Reversed and remanded.

Edward S. Rogers, of Chicago, 111., and Harold
Hirsch, of Atlanta, Ga. (C. V. Meredith, of Eichmond,

— 87 —

THE COCA-COLA COMPANY

Va., Candler, Thomson & Hirsch, of Atlanta, Ga., and
Frank F. Reed, of Chicago, 111., on the brief), for
appellant.

Robert E. Scott and L. 0. Wendenburg, both of
Richmond, Va. (T. Gray H addon, of Richmond, Va.,
on the brief), for appellee.

Before KNAPP and WOODS, Circuit Judges, and ROSE,
District Judge.

ROSE, District Judge :

Plaintiff's trade-mark "Coca-Cola" is duly reg-
istered under the ten-year provision of the federal
trade-mark law (Comp. St. 9490). It is therefore
immaterial that it may once have been descriptive or
that to a degree it may be so still. Thedeus Davids
Co. v. Davids, 233 U. S. 468.

The Supreme Court has very recently overruled the
contention that because of what is said to have been
or to be its deceptive character plaintiff may not be
heard to complain of its infringement. Coca-Cola
Company v. Koke Company (Decided December 6,
1920).

The bill in this case charges that defendant has in-
fringed it by the sale of its wares under the trade-
mark "Taka-Kola," and has also unfairly competed
by the use of such words and by the design and orna-
mentation of its bottles.

In dismissing the case without opinion the learned
District Judge of the Western District of Virginia
sitting by special assignment may have been influenced
by the decision of the Circuit Court of Appeals for
the Ninth Circuit of Coca-Cola Co. v. Koke Company,
255 Fed. 894, since reversed by the Supreme Court in
the case heretofore cited.

Plaintiff, from a time long anterior to the use of
the words "Taka-Kola" by anybody, had actively and
continuously marketed its wares in the very localities

— 88 —

v. OLD DOMINION BEVERAGE CORPORATION

in which defendant has offered its drink for sale.
Both plaintiff and defendant use their respective
marks in interstate as well as intrastate commerce,
so that the former may invoke the Federal Acts no
matter how narrow may be the construction of the
protection they constitutionally give. Louis Bergdoll
Brewing Co. v. Bergdoll Brewing Company, 218 Fed.
131.

The parties are corporations of different states and
the value of the thing in controversy exceeds $3,000.00,
so that the Courts of the United States may enforce
the common law rights of the plaintiff as well in its
trade-mark as against unfair competition. An injunc-
tion is an appropriate part of the relief for which it
asks, so that it has properly preferred its complaint
to the equity side of the Court.

The beverages upon which the marks are used are
not only of the same general character, but are in fact
so similar in taste, color and appearance that it is
doubtful whether the ordinary purchaser can tell one
from the other when they come to him unmarked and
otherwise unidentified.

When defendant began business the plaintiff's drink
had been on sale in most parts of the country and cer-
tainly in Virginia for a quarter of a century or more.
Its business had grown to great proportions, a result
due in large if not in largest part to the extensive and
expensive advertising it has always done, the cost of
which in recent years has averaged a million or more
annually. Defendant was promoted by some persons
who came here from Tennessee, where they or some
of them had been connected with a concern which, in
the Patent Office, had had a losing fight with the plain-
tiff over the right to use the words, "Tenn-Cola,"
Coca Cola Co. v. Tenn-Cola Co. (Patent Office Opposi-
tion No. 1894).

Perhaps the geographical proximity of Tennessee
to Atlanta in which plaintiff's business began, and in
which it became so visibly and attractively lucrative,

— 89 —

THE COCA-COLA COMPANY

explains why this is not the first instance in which
plaintiff:' has thought itself compelled to complain of
infringement and of unfair coin petition originating in
that state. Coca-Cola Company v. Nashville Syrup
Company, 200 Fed. lf>7, affirmed in 215 Fed. 527> and
of which Coca-Cola Co. v. Duberstein, 249 Fed. 7(5:!,
appears to have been an aftermath. Coca-Cola Com-
pany v. Gay-Ola Company, 200 Fed. 920; Coca-Cola
Co. v. Tenn-Cola Co., ,s/f/»7/.

In the instant case the defendant's mark "Taka-
Kola" consists as does kk( 1oca-Cola" of two words,
each of four letters and of two syllables. In each
phrase a consonant and a vowel alternate, there being
in each four of the one and four of the other. Plain-
tiff's a and o each appear twice. Defendant's has
three a's and one o. The consonant 1 is common to
both and in each is the seventh letter from the begin-
ning. Plaintiff's contains three c's, having in every
instance the hard or k sound. Twice defendant re-
places the c with a k, and once by a t, the use of which
last must be relied upon to distinguish the two words,
for in every other respect they are for all practical
purposes identical. The two words of plaintiff are
united by a hyphen, so are those of the defendant.
The plaintiff displays its in script. The defendant
has followed suit. The color scheme of the crown
corks with which each seals its bottles is so nearly the
same that when they are lying on their sides with the
tops outward, or are standing upon their bottoms in
racks or trays, they are at a distance of a few feet
indistinguishable. It taxes credulity to believe that so
close a resemblance was accidental.

There, however, appears to be nothing of substance
in plaintiff's claim that defendant has imitated its
distinctive type of bottle. The two designs are not
enough alike to justify a finding that as to them there
is unfair competition.

The defendant, after the manner of others in like
case, says it has always wanted to sell its drink for

— 90 —

v. OLD DOMINION BEVERAGE CORPORATION

what it is, and to that end has done all that in it lies
to distinguish its product from Coca-Cola. The courts
have had frequent occasions to note the scant success
which too often rewards such efforts.

In this case it is true that the evidence does not
show that the defendant ever asked anyone to sell its
product as Coca-Cola. It appears that in Richmond
at least most purchasers know that Taka-Kola is in a
way different from Coca-Cola. On the other hand,
the similarity of names seems to have suggested to
unscrupulous retailers that they could mix defendant 's
product with that of plaintiff and sell the compound
as Coca-Cola, the marked likeness in taste and color
making such a partial substitution safe and easy. At
one time when in Richmond the supply of Coca-Cola
ran short, this fraud appears to have been practiced
to an appreciable extent.

The strength of defendant's position, if it has any,
must lie in the soundness of the contention which it
sets up implicitly if not explicitly, that as Coca-Cola
is not patented it has the right to make it if it will
and can, or may make something as near like it as its
skill and knowledge will permit ; that having produced
a beverage which in all substantial respects is almost
if not quite the same thing, there is no reason why it
may not tell the public it has done so, and that it
makes no legal difference whether to give this infor-
mation it uses many sentences or but one or only two
short words. It says that while the phrase "Taka-
Kola" informs possible purchasers that the beverage
it makes is very much like Coca-Cola, it also gives him
to understand that it is the product of another con-
cern.

The argument is ingenious. It is of course true that
because plaintiff's drink is not patented anyone who
knows how can make it without leave or license from
plaintiff, but also because it never has been patented
the name which constitutes plaintiff's trade-mark for
it, may not, without plaintiff's consent, be either used

— 91 —

THE COCA-COLA COMPANY

or imitated by another. Buffalo Specialty Co. v. Van
Cleif, 227 Fed. 391. Hopkins on Trade-Marks, 3rd
Ed. Sec. 51.

May defendant employ for the sole purpose of
bringing its wares speedily and cheaply into notice
a variant of plaintiff's trade-mark so close as to sug-
gest the latter to everyone, thereby turning to its own
profit the reputation which the plaintiff has built up
through many years of skill and effort, and at the
cost of millions expended in advertising its goods
under its mark? It may tell the thirsty that its drink
is not only as good as Coca-Cola, but that it believes
it to be in fact the same thing, but can it do so by
using plaintiff's trade-mark to plaintiff's hurt? Even
if there is no attempt by defendant to palm off its
goods as those of plaintiff, does it necessarily follow
that defendant is not unfairly coihpeting? The right
to equitable relief is not confined to cases in which
one man is selling his goods as those of another. In-
ternational News Service v. Associated Press, 248
U. S. 215, at 241. What in that case upon a different
state of facts, was said of the respondent, is appli-
cable to defendant's conduct here, for it too ''amounts
to an unauthorized interference with the normal op-
eration of complainant's legitimate business pre-
cisely at the point when the profit is to be reaped, in
order to divert a material portion of the profit from
those who have earned it to those who have not."
(Vide supra, page 240.)

By using the words "Taka-Kola" and by imitating
the ornamentation of the crowns of plaintiff's bottles,
defendant has unfairly competed and is still doing so,
but has it not also infringed upon plaintiff's exclusive
right to the use of its Federally registered trade-
mark? A trade-mark is property of a limited and
qualified kind it is true. It cannot exist apart from
the business with which it is connected nor in juris-
diction into which that business has not gone leaving
on one side the possible effect of State or Federal

— 02 —

v. OLD DOMINION BEVERAGE CORPORATION

registration. But it is property still within the some-
what restricted limits imposed upon its owner's
rights. It would seem to follow as we think it does
that it is entitled to protection against the attempt of
a competitor to use it to push his wares to the pos-
sible and probable damage of the owner. Plaintiff's
rights are limited at the most to two words. All the
rest of infinity is open to defendant. It will be safe
if it puts behind it the temptation to use in any
fashion that which belongs to the plaintiff. It has
not done so voluntarily and compulsion must be ap-
plied.

It is unnecessary to say that we are deciding the
case before us. Here we have found from all the
facts both infringement of a trade-mark and unfair
competition. We are not to be understood as inti-
mating any opinion as to whether plaintiff has or
has not any exclusive rights in either of the words
which made up the trade-mark when either is used
separately from the other, and under circumstances
in which there is no attempt by a competitor to use
plaintiff's property to plaintiff's damage.

Both on the grounds of unfair competition and of
infringement of a registered trade-mark, defendant
must be enjoined from the further use in its business
of the phrase "Taka-Kola" and from continuing its
unfair competition in the simulation of the ornamenta-
tion of the crowns of plaintiff's bottles, and must ac-
count for what it has done.

It follows that the decree dismissing the bill of com-
plaint must be reversed and the cause remanded for
further proceedings in accordance with the conclusions
herein stated.

Reversed.

— 93 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF VIRGINIA

THE COCA-COLA COMPANY,

Plaint iff,
v.

OLD DOMINION BEVERAGE
CORPORATION,

Defendant.

No. 1721).

DECREE

Upon the filing of the mandate of the Circuit Court
of Appeals, and it appearing from the said mandate
that the Circuit Court of Appeals has reversed with
costs the decree of this Court entered herein on the
27th day of December, 1918, and has remanded this
cause to this court with directions, and it appearing
further that, pending the proceeding in the Circuit
Court of Appeals, The Coca-Cola Company, a Dela-
ware corporation, succeeded to the rights of the orig-
inal plaintiff herein, The Coca-Cola Company, a
Georgia corporation, and that said The Coca-Cola
Company, of Delaware, has been duly substituted as
plaintiff herein; and it appearing further that the
Supreme Court of the United States, on June 6, 1921,
denied defendant's application for a writ of cer-
tiorari to review the decree of the Circuit Court of Ap-
peals herein; now, in conformity with the mandate
of the Circuit Court of Appeals, it is Ordered, Ad-
judged and Decreed as follows :

1. That the Court has jurisdiction of the subject
matter and of the parties to this suit.

— 94 —

v. OLD DOMINION BEVERAGE CORPORATION

2. That the word Coca-Cola is a valid trade-mark
of which plaintiff is the sole owner.

3. That plaintiff alone, is entitled to use the trade-
mark Coca-Cola and that its goods alone, can lawfully
be sold under that name.

4. That plaintiff being the owner of the trade-mark
Coca-Cola, duly registered its said trade-mark under
and in conformity with the Act of Congress approved
March 3, 1881, entitled: "An Act to authorize the
registration of Trade-marks and to protect the same,"
and under the Act of Congress of February 20, 1905,
entitled: "An Act to authorize the registration of
Trade-marks used in commerce with foreign nations
or among the several states or with Indian tribes and
to protect the same," that said registrations num-
bered 22,406 and 47,189 respectively, are valid and
subsisting, and are the sole property of the plaintiff,
and that the plaintiff is entitled to the rights and rem-
edies provided in said statutes.

5. That the word Taka-Kola, adopted and used by
the defendant, is an infringement of the plaintiff's
said trade-mark, Coca-Cola and is a copy or colorable
imitation thereof, within the meaning of the Act of
Congress of February 20, 1905, and that the defend-
ant has affirmed said copy or colorable imitation to
merchandise of substantially the same descriptive
properties as those set forth in plaintiff's said regis-
trations and to labels, signs, prints, packages, wrap-
pers and receptacles intended to be used upon and
in connection with the sale of merchandise of sub-
stantially the same descriptive properties as those set
forth in such registrations and has used such copy or
colorable imitation in commerce among the several
states of the United States, and that the defendant
thereby has infringed the plaintiff's said registered
trade-mark.

6. That the defendant has used and applied to pack-
ages containing its said product, decorated crowns
with a color scheme and script lettering thereon so

— 95 —

THE COCA-COLA COMPANY

nearly the same as the distinctive crowns and script
lettering of the plaintiff as to be substantially indis-
tinguishable therefrom, and that the defendant thereby
has competed unfairly with the plaintiff.

7. That defendant, Old Dominion Beverage Cor-
poration, its officers, agents, servants, employes, at-
torneys, licensees, transferees and assigns and each
and all thereof and all acting by or under its author-
ity, be and they are each and all perpetually enjoined
and restrained from using or employing or authoriz-
ing the use or employment, in connection with the
manufacture, advertisement, offering for sale or sale
of any beverage or ingredient thereof, of plaintiff's
trade-mark Coca-Cola or any like word or the color-
able imitation thereof, Taka-Kola or any like word;
from using or employing or authorizing the use or
employment of designs, devices, ' script lettering, or
crowns identical with or like the designs, devices,
script lettering, or crowns of the plaintiff, or the de-
signs, script lettering, devices or crowns used by the
defendant and referred to in the bill of complaint
herein, and further from doing any act or thing or
using any name or names, device, artifice or con-
trivance which may be calculated or likely to cause
any product not the plaintiff's to be sold as and for
the product of the plaintiff, and that writs of injunc-
tion accordingly issue forthwith.

8. That defendant account to the plaintiff any and
all profits derived by said defendant from defendant's
unfair trading with the plaintiff, and in addition to
the profits to be thus accounted for by the defend-
ant, the defendant pay to the plaintiff the damage
plaintiff has sustained by reason of defendant's said
infringement and unfair trading, and this cause is
hereby referred to Eobt. H. Talley, Esq., Master in
Chancery of this Court, to take and state an account-
ing to the plaintiff for any and all such profits and
any and all such damages, with full power to the
Master to subpoena and order the attendance of

— 96 —

v. OLD DOMINION BEVERAGE CORPORATION

witnesses, to take depositions and require the produc-
tion of books, papers and documents pertinent to the
taking and stating of said accounting, and to report to
this court such accounting and statement of profits and
damages; with the right to the plaintiff to move the
court to enter judgment upon said accounting for any
sum above the amount found as the actual damages,
not exceeding three times the amount thereof.

9. That all labels, signs, prints, packages, wrap-
pers or receptacles in the possession of the defendant
bearing the colorable imitation Taka-Kola of the
plaintiff's registered trade-mark Coca-Cola be forth-
with delivered up for destruction, provided however
that the bottles of the defendant with the name blown
therein may be used in the sale of drinks not resem-
bling that of the plaintiff where the name Taka-Kola is
removed or hidden and the name of the contents of
said bottles plainly shown on same.

10. That defendant pay the costs of this suit to be
taxed, including the costs in the Circuit Court of Ap-
peals and the costs in this court, and that upon taxa-
tion plaintiff have execution therefor.

D. LAWRENCE GRONER,

Richmond, Va., U. S. Judge.

July 12, 1921.

A true copy. Attest.

(Signed) R. E. POWERS,

Deputy Clerk.

— 97 —

SUPREME COURT

OF THE UNITED STATES

256 U. S. 703; 65 L. ED. 1179

No. 908

OLD DOMINION BEVERAGE CORPORATION,

I

v.

THE COCA-COLA COMPANY.

Petition for Writ of Certiorari to the United States

Circuit Court of Appeals for the

Fourth Circuit.

Denied on June 6, 1921.

ME. WILLIAM L. SYMONS,
For Petitioner.

MESSRS. HAROLD HIRSCH and EDWARD S. ROGERS,
For Respondent.

— 98 —

IN THE COURT OF
APPEALS
OF THE
DISTRICT OF COLUMBIA

273 FEDERAL 755

No. 1393— JUNE 6, 1921

THE COCA-COLA COMPANY,

v.
CHERO-COLA COMPANY.

HAROLD HIRSCH, Atlanta, Georgia,
EDWARD S. ROGERS, Chicago, Illinois,
NELSON J. JEWETT, Washington, D. C.,
For Appellant.

C. L. PARKER, Washington, D. C.,
MELVILLE CHURCH, Washington, D. C.,
For Appellee.

— 99 —

THE COCA-COLA COMPANY

IN THE COURT OF APPEALS OF THE
DISTRICT OF COLUMBIA

273 FEDERAL 755

No. 1393— JUNE 6, 1921

THE COCA-COLA COMPANY,

v.
CHERO-COLA COMPANY.

-r

1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— RIGHT TO REGISTER TRADE-MARK
DEPENDS ON WHETHER IT WOULD TEND TO CON-
FUSE OR DECEIVE PURCHASERS.

Under the Trade-Mark Act (Comp. St. Sec. 9490), the test of
the right to register a trade-mark, opposed by the owner of a
trade-mark applying to goods of the same descriptive property, is
whether or not the marks are so similar as to be likely to cause
confusion in the public mind or to deceive purchasers.

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— ARGUABLE DIFFERENCES DO NOT
DEFEAT OPPOSITION TO TRADE-MARK REGISTRA-
TION.

The fact that applicant's and opposer's marks do not sound
quite alike, and have a different number of letters in each are
only arguable differences, which are not enough to defeat the
opposition, since the second applicant, having an almost limit ic-s
field to choose from, should select a mark clearly distinguished
from the existing mark.

3. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— "CHERO-COLA" HELD LIKELY TO
CONFUSE PURCHASERS DESIRING "COCA-COLA."

Applicant's trade-mark of "Chero-Cola" is sufficiently similar to
the opposer's mark, "Coca-Cola," to be apt to confuse an ordinary
purchaser, who generally does not have more than a faint impression

— 100 —

v. CHEEO-COLA COMPANY

of the trade-mark and acts quickly on a general glance, so
that the opposition to the registration of the trade-mark will be
sustained, especially where witnesses testified to numerous instances
of actual confusion produced by applicant's mark, and applicant's
own counsel in the examination of witnesses several times con-
fused the two marks.

4. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— DOUBTS AS TO RIGHT TO REGIS-
TER MUST BE RESOLVED IN FAVOR OF OPPOSER.

Doubts as to the right of an applicant to register a trade-mark
against the opposition of the owner of a mark for goods of the
same descriptive properties must be resolved in favor of the
opposer.

Appeal from the Commissioner of Patents.

Application by the Chero-Cola Company for the reg-
istration of a trade-mark, opposed by The Coca-
Cola Company. From a decision of the Commis-
sioner of Patents, over-ruling the opposition, the
opposer appeals. Reversed.

Edward S. Rogers, of Chicago, 111., Harold Hirsch,
of Atlanta, Ga., and Nelson J. Jewett, of Washington,
D. C., for appellant.

C. L. Parker and Melville Church, both of Washing-
ton, D. C., for appellee.

SMYTH, Chief Justice:

Appellee made application to have registered in the
Patent Office the words " Chero-Cola " as a trade-mark
for "Cola," a soft drink. The application was op-
posed by the appellant, on the ground that it (the
appellant) was the owner of the registered mark
1 ' Coca-Cola, ' ' which is applied by it to the same kind
of a drink. The Examiner of Interferences sustained
the opposition, but was reversed by the Commissioner
of Patents.

Opposer has been using its mark since 1886, while
applicant did not adopt its mark until 1911. It is

— 101 —

THE COCA-COLA COMPANY

conceded that the goods of the parties have the same
descriptive properties, and therefore there is but one
matter for our decision, namely, whether or not the
marks are so similar as to be likely to cause confusion
in the public mind or to deceive purchasers. 33 Stat.
L. 725 (Comp. St. Sec. 9490).

Nearly 3,000 pages of testimony were taken, and
elaborate briefs have been filed. Many decisions by
courts in this country, and in England are cited, and,
besides, we are invited to listen to the teaching of
psychology on the subject. None the less the question
in dispute is a simple one, and the principles by which
its solution may be reached have been often declared
and applied to this court.

It is true that, if we analyze the two marks, differ-
ences will be found. They do not sound quite alike,
and the number of letters in each is not the same, but
these are only arguable differences, which are not
enough to defeat the opposition. William Waltke &
Co. v. Gep. H. Schafer & Co., 49 App. D. C. 254, 256,
263 Fed. 650, and cases cited; Thos. Manufacturing
Co. v. Aeolian Co., 47 App. D. C. 376, 379.

Each of the marks embraces two hyphenated words.
"C" is the first letter in each mark, and "Cola" the
last word in each. The image which one mark paints
upon the mind is not clearly different from that made
by the other mark. To require that the line which
separates marks should be well defined is not to ask
too much, since the field from which a person may
select a mark is almost limitless. Florence Manufac-
turing Co. v. Dowd & Co., 178 Fed. 73, 75, 101 C. C. A.
565; Waltke & Co. v. Schafer & Co., supra-, Thos.
Manufacturing Co. v. Aeolian Co., supra, 47 App. D.
C. 378. If he is not content with a word to be found
in a dictionary, he may coin one.

Of course, if the two marks were placed together,
or if a person's attention was in some way directed
to them there would be no difficulty in apprehend ing
the difference between them. This, however, is not

— 102 —

v. CHERO-COLA COMPANY

the way to make the test. Ordinarily the prospective
purchaser does not carry more than a faint impres-
sion of the mark he is looking for. If the article of-
fered to him bears a mark having any resemblance to
the one he is thinking of, he is likely to accept it. He
acts quickly. He is governed by a general glance.
The law does not require more of him. Patton Paint
Co. v. Orr's Zinc White, 48 App. D. C. 221.

Many witnesses testified to numerous instances of
actual confusion produced by applicant's mark. Even
counsel for applicant in the cross-examination of wit-
nesses, several times confused "Coca-Cola" with
" Chero-Cola, " The statute does not require proof
of actual confusion, but when there is such proof it is
not easy to escape the conclusion that the assailed
mark if registered, would be likely to do that which
it has done.

Opposer, as we have seen, adopted its mark in 1886,
and has been using it ever since, so that "the mark
for years has acquired a secondary significance, and
has indicated the plaintiff's (opposer's) product
alone." Coca-Cola Co. v. Koke Co. of America, 254
U. S. 143, 41 Sup. Ct. 113, 65 L. Ed. — . Millions have
been spent by it for advertising its goods under the
mark. During the time that it has used the mark it
has been doing business in Atlanta, Ga. Applicant's
place of business is in a nearby town — Columbus, Ga.
It, as we have said, did not commence to use its mark
until 1911, 25 years after opposer had put into use its
mark. Why was this mark selected by it, since it had
so many others from which to choose? Is not its ac-
tion open to the inference that the purpose was to ap-
propriate some of opposer's business, by producing
confusion in "the minds of the purchasing public?
Whatever the purpose may have been, it is quite un-
deniable that mistakes have resulted from the use of
applicant's mark.

Even if we doubted with respect to the proper solu-
tion of the question before us, it would be our duty

— 103 —

THE COCA-COLA COMPANY

to resolve the doubt against the applicant. Lambert
Pharmacal Co. v. Mentho-Listine Co., 47 App. D. C.
197 ; William Waltke & Co. v. Geo. H. Schaf er & Co.,
supra.

Considering the matter in the light of the statute,
the record and our previous decisons, we are con-
strained to hold that the opposition should be sus-
tained, and hence the decision of the Commissioner of
Patents must be, and it is, reversed.

Reversed.

I

104 —

IN THE CIRCUIT COURT OF APPEALS,
FIFTH CIRCUIT

221 FEDERAL 61

MARCH 8, 1915

THE COCA-COLA COMPANY,

v.
GLEE-NOL BOTTLING CO., et al.

TRADE-NAMES AND TRADE-MARKS, K. N. 70 — UNFAIR
COMPETITION— ACTS CONSTITUTING.

Bottles of the same size, shape, color, and general appearance
as those commonly used for plaintiff's beverage, Coca-Cola, and
that of defendant, Glee-Nol, were in general use as containers
of many other beverages similarly dealt in. The beverages were
unlike in taste or odor, and there were many other beverages on
the market having practically the same color as both. Defend-
ant had not undertaken to mislead dealers to whom it sold, nor
to induce them to substitute Glee-Nol for Coca-Cola. Though
the name Glee-Nol was blown into the same parts of the bottles
at which the name Coca-Cola was blown into the bottles con-
taining it, generally, but not universally, and though the name
appeared in the same style of script, or type in imitation of writ-
ten letters, it did not appear that, prior to the time defendant
commenced placing the name on that part of the bottle, corre-
sponding places on plaintiff's bottles had been in such general
and exclusive use that the mere presence of any word at such
place had come to be accepted generally or to any appreciable
extent as an identification of the beverage, nor did it appear that
the use of the same style of script resulted in any greater re-
semblance than that existing between two written or printed
words which are wholly different except in so far as a letter or
letters common to both are alike, and it appeared that no one could
be deceived, unless he was so utterly unobservant that he might be
deceived without any resemblance between the two articles. HELD,
that unfair competition on defendant's part did not appear.

— 105 —

THE COCA-COLA COMPANY

Appeal from the District Court of the United States
for the Eastern District of Louisiana. KUFUS E.
FOSTER, Judge.

Suit by the Coca-Cola Company against The Glee-Nol
Bottling Company and others. Decree for defend-
ants, and plaintiff appeals. Affirmed.

Harold Hirsch, of Atlanta, Ga., and John May, of
New Orleans, La. (Candler, Thomson & Hirsch and
A. W. Candler, all of Atlanta, Ga., and Fred S. Weis,
of NewT Orleans, La., on the brief), for appellant.

Henry P. Dart, of New Orleans, La. (Dart, Kernan
& Dart, of New Orleans, La., on the brief), for appellee
Glee-Nol Bottling Co.

Edivard P. Foley, of New Orleans, La., for appellee
Grosz.

Before PARDEE and WALKER, Circuit Judges, and
SHEPPARD, District Judge.

WALKER, Circuit Judge:

We concur in the conclusion reached by the
District Court that the evidence adduced was in-
sufficient to furnish substantial support for the
claim of unfair competition made by the bill.
Bottles of the same size, shape, color, and general
appearance as those commonly used as containers
of the two drinks in question, that of the plaintiff,
Coca-Cola, and that of the defendant company, Glee-
Nol, are in general use as containers of many other
drinks which are similarly dealt in. The name of the
defendant company's drink is not at all like that of
the plaintiff. The one drink is not like the other in
either taste or odor. There are many other drinks on
the market which have practically the same color as
that of each of these two. There was no evidence at
all having a tendency to prove that the defendant in

— 106 —

v. GLEE-NOL BOTTLING CO., et al.

any way undertook to mislead the dealers to whom
alone it sells its drink or to induce them to substitute
Glee-Nol when Coca-Cola was called for; and there
was no evidence of any conduct of the defendant com-
pany from which it could be inferred that anything it
did amounted to an imitation of any distinguishing
feature of the plaintiff's product or was intended to, or
in fact did, beguile the public or any part of it into
buying Glee-Nol under the impression that they were
buying Coca-Cola, unless such evidence is found in
that which went to prove that the name Glee-Nol was
blown into the same parts of the bottles containing it
at which the name Coca-Cola is found blown into the
bottles generally but by no means universally, used
by the distributors of that beverage, and that the
letters forming the name Glee-Nol, where it appears
on the bottles used by defendant company, are of a
style of script or type made in imitation of written
letters similar to that used in displaying the name
Coca-Cola on the bottles containing it.

The evidence failed to show that, prior to the time
of the defendant company's selection of the places on
its bottles at which the name of its drink was blown
in, corresponding places on their bottles had been in
such general and exclusive use for the same purpose
by the distributors of the plaintiff's drink that the
mere presence of a word, without regard to what it
was, blown at those places into such bottles as the
plaintiff's drink was generally marketed in, had come
to be accepted generally or to any appreciable extent
as a ready means of identifying the beverage which a
bottle contained as Coca-Cola and distinguishing it
from any other beverage similarly served. And it
was not made to appear that the use by the defend-
ant company of the same style of script as that used
for the name Coca-Cola on the bottles containing it
resulted in there being any resemblance between the
two names as they were respectively displayed other
than such as exists between two written or printed
words which are wholly different, except in so far as

— 107 —

THE COCA-COLA COMPANY

a letter or letters common to both alike. The impres-
sion made by the evidence as a whole is that the re-
spective products of the plaintiff and the defendant
company, and the ways they are put up, are unlike
in so many respects and are so readily distinguish-
able, and the points of resemblance are so few and
of a kind so unlikely to create confusion, as to negative
the conclusion that there was an imitation which was
either intentional or deceptive and to indicate the im-
probability of any one being deceived into accepting
Glee-Nol when he calls for Coca-Cola, unless he is so
utterly unobservant when he gets and consumes such
a beverage that a deception might with equal success
be practiced upon him, whether there is or is not a
resemblance in any identifying particular between
what he calls for and what he gets. A charge of un-
fair competition cannot be sustained by such evidence.
' * The essence of the wrong in unfair competition con-
sists in the sale of the goods of one manufacturer or
vendor for those of another, and if defendant so con-
ducts its business as not to palm off its goods as those
of complainant the action fails." Howe Scale Co. v.
Wyckoff, Seamans & Benedict, 198 U. S. 118, 140, 25
Sup. Ct. 609, 614 (49 L. Ed. 972) ; Coca-Cola Co. v.
Branham, et al. (D. C. 216 Fed. 264).

The decree appealed from is affirmed.

— 108 —

IN THE CIRCUIT COURT OF APPEALS,
FIFTH CIRCUIT

212 FEDERAL 412

No. 2478— FEBRUARY 17, 1914

THE COCA-COLA COMPANY,

v.
HOBSTMAN, et al.

TRADE-MARKS AND TRADE-NAMES (Sec. 93)— SUIT FOR
INFRINGEMENT— SUFFICIENCY OF EVIDENCE.

A decree dismissing a bill for infringement of trade-
mark affirmed.

PAKDEE, Circuit Judge, dissenting on the merits, but
holding that on record the court was without
jurisdiction.

Appeal from the District Court of the United States
for the Western District of Texas. THOMAS S.
MAXEY, Judge.

Suit in Equity by The Coca-Cola Company against
Frederick Horstman and Angelo Basseti, doing
business under the firm name of the Austin Bot-
tling Works. Decree for defendants, and com-
plainant appeals. Affirmed.

Candler, Thomson & Hirsch, Atlanta, Georgia, M. M.
Crane, Dallas, Texas, and H. 0. Head, Sherman,
Texas, for appellant.

— 109 —

THE COCA-COLA COMPANY

John W. Brady, of Austin, Texas, for appellees.

Before PAKDEE and SHELBY, Circuit Judges, and
GRUBB, District Judge.

Per curiam. Finding this case was correctly rul<'<!
and decided in the District Court, the decree appealed
from is affirmed.

PAKDEE, Circuit Judge (dissenting) :

It seems to me that the District Court was
without jurisdiction. Diverse citizenship is not suf-
ficiently alleged in the bill, nor otherwise shown
in the record (Grace v. American Central Insur-
ance Company, 109 U. S. 278, 3 Sup. Ct. 207,
27 L. Ed. 932; Wrisley v. Bouse Soap Company,
90 Fed. 5, 32 C. C. A. 496), and the bill does
not allege, nor is it shown by evidence in the record,
that the defendants are infringing complainant's
trade-mark in interstate, foreign or Indian commerce.
Ryder v. Holt, 128 U. S. 525, 9 Sup. Ct. 145, 32 L. Ed.
529; Warner v. Searle & Hereth Company, 191 U. S.
195, 24 Sup. Ct. 79, 48 L. Ed. 145.

As the record stands, the decree below is one dis-
missing the bill on the merits. In my judgment, on
the merits the complainant below and appellant here
is entitled to relief, and the decree below, dismissing
the bill, should be so qualified as to permit complain-
ant to bring another suit.

— 110 —

UNITED STATES OE AMERICA,
BEFORE FEDERAL TRADE COMMISSION.

At a regular session of the Federal Trade Com-
mission, held at its office in the City of Washington,
1). C., on the 17th day of November, A. D. 1919.

Present :

JOHN FRANKLIN FORT, Chairman,

VICTOR MURDOCK,

m )> Commissioners.

HUSTON THOMPSON,

WILLIAM D. COLVER,

DOCKET No. 39

FEDERAL TRADE COMMISSION

v.
THE COCA-COLA COMPANY.

ORDER DISMISSING PROCEEDING..

The Federal Trade Commission having heretofore
issued a complaint under date of February 15, 1918,
in the above entitled proceeding against The Coca-
Cola Company, charging said company with unfair
methods of competition in interstate commerce in
violation of the provisions of Section 5 of an Act of
Congress approved September 26, 1914, entitled "An
Act to create a Federal Trade Commission, to define
its powers and duties and for other purposes," and
with violation of the. provisions of Section 3 of an
Act of Congress approved October 15, 1914, entitled
"An Act to supplement existing laws against unlaw-
ful restraints and monopolies, and for other pur-
poses"; and the respondent having filed its answer,
an agreed statement of facts having been entered

— in —

THE COCA-COLA COMPANY

into, and briefs submitted, the Commission, on a con-
sideration of the whole case, is of the opinion that
present public interest not appearing, it is therefore
Ordered, that the above entitled proceeding be, and
the same is, dismissed and discontinued without prej-
udice.

By the Commission.

(Signed) J. P. YODER.

J. P. YODER,
Secretary.

John Walsh, Chief Counsel for the Commission.

Candler, Thomson & Hirsch, for The Coca-Cola
Company.

I

UNITED STATES CIRCUIT COURT,
NORTHERN DISTRICT OF GEORGIA

SUIT TO RECOVER TAXES
ILLEGALLY COLLECTED

THE COCA-COLA COMPANY, Plaintiff,

v.
HENRY A. RUCKER, Defendant,

Gentlemen of the Jury:

The action of the plaintiff, The Coca-Cola Company,
against H. A. Rucker, collector of internal revenue,
is in effect, a suit against the United States of Amer-
ica. The purpose of this suit is to recover certain
taxes claimed by the United States from The Coca-
Cola Company, and collected under and by virtue of
what is known as the War Revenue Tax Act of 1898

It is agreed between counsel for the respective par-
ties that the taxes which were paid, and which are
now sought to be recovered, were paid under protest,
and that the formalities required in such cases were
complied with, and that the real question for your de-
termination is whether the tax exacted by the gov-
ernment was lawful or unlawful. The amount of the
tax is not in dispute, and is as shown in the plaintiff's
declaration, $10,858.76, which they will be entitled to
recover, if entitled to recover at all, with interest
thereon from the dates the respective payments were
made, as shown in the declaration and not disputed, as
I understand it.

The Plaintiff company by its suit asserting that the
tax collected of it was unlawful, it is incumbent on

— 113 —

THP] COCA-COLA COMPANY

it by a preponderance of the evidence to show you
that this is true, by showing that the preparation on
which this tax was collected does not come within the
terms of the revenue act referred to.

The claim of the government is that the Coca-Cola
preparation is a medicinal proprietary article and
preparation; that it is a medicinal article compounded
by formula and that it is put up in the style and man-
ner similar to that of patent, trade-mark and proprie-
tary medicines in general, but that in any event it is
advertised to the public as a remedy or specific for
human ailments, and as having special claim to merit
in mode of preparation, quality, use and effect.

The revenue act in question, under the head of
medicinal, proprietary articles and preparations, uses
this language:

"For and upon every packet, box, bottle, pot or
phial, or other inclosure containing any pills, pow-
ders, tinctures, troches or lozenges, syrups, cordials,
bitters, anodynes, tonics * * and all medicinal prep-
arations or compositions whatsoever, made and sold,
or removed for sale by any person or persons what-
ever, wherein the person making or preparing the
same has or claims to have any private formula, se-
cret or occult art for the making or preparing the
same, or has or claims to have any exclusive right or
title to the making or preparing the same, or which
are prepared, uttered, vended or exposed for sale un-
der any letters patent or trade-mark, or which, if
prepared by any formula published or unpublished,
are held out or recommended to the public by the
makers, vendors or proprietors thereof as proprietary
medicines, or medicinal proprietary articles or prep-
arations, or as remedies 'or specifics for any disease,
diseases or affection whatever affecting the human
or animal body as follows:" Then proceeds to affix
the amount of the percentage tax.

The latter part of Section 20 of the act in question
is an interpretation or construction of schedule B,

— 114 —

v. HENRY A. RUCKER

which I have just read to you. It provides that "The
stamp taxes provided for in schedule B, of this act,
shall apply to all medicinal articles compounded by
any formula, published or unpublished, which are put
up in style or manner similar to that of patent, trade-
mark or proprietary medicines in general, or which
are advertised on the package or otherwise as rem-
edies or specifics for any ailment, or as having any
special claim to merit, or to any peculiar advantage
in mode of preparation, quality, use or effect."

Two questions are really presented for your de-
termination under the evidence in this case. The first
is whether the Coca-Cola preparation is a medicine
or medicinal article which is compounded by formula
which is published or unpublished and put up in n
manner similar to that of patent, trade-mark or pro-
prietary articles in general ; or, second : whether the
Coca-Cola preparation is advertised on the package
or otherwise as a remedy or specific for any ailment
or as having any special claim to merit or any pe-
culiar advantage in its mode of preparation, use,
quality or effect.

There has been very little dispute in the evidence
as to the character of the ingredients which go to
make up the Coca-Cola syrup, and the claim for the
plaintiff is that while some of the ingredients which
enter into the preparation of Coca-Cola may be such
as are classed as drugs for certain purposes, yet that
as used by them they should not be so considered.
They claim that what they put up is merely a syrup
which is used mainly and almost entirely in the prep-
aration of a beverage, drank across the counter at soda
fountains.

On the other hand, it is claimed that on account of
the ingredients which are compounded into this
syrup, and the formula used, and the trade-mark ob-
tained for the same, it comes within this act in that
respect, or that in any event it is held out to the
world by The Coca-Cola Company as a medicinal

— 115 —

THE COCA-COLA COMPANY

preparation, and for that reason, it comes within the
act, whether it is really in effect a medicinal prepara-
tion or not.

The question for your consideration is whether it is
really a medicinal preparation in itself, or if not,
whether it is put out by the company to the world as
such in its advertising- matter. If so, it is subject to
the tax. If, on the other hand, it is used as a bever-
age simply and purely, and only held out to the world
by the plaintiff in its advertising matter as such, it is
subject to the tax. It is said on the part of the gov-
ernment that by its advertising matter, this prepara-
tion is held out to the world as a remedy for head-
ache and for nervous exhaustion, and that headache
and nervous exhaustion are ailments within the mean-
ing of the act. This is a questicp for the jury to de-
termine. It is a question for you as men of ordinary
sense to determine from your own knowledge of such
matters, and from the evidence of the case. You have
the evidence of experts on the subject. This act
speaks of ailments, and it is said that these two
things, headache and nervous exhaustion, are ail-
ments of the human body. The Court instructs you
that the jury should take the words used in this act
in their usual and ordinary significance and give
them the meaning which in this wray would be at-
tributed to them. Revenue acts are construed strictly
in favor of the citizen, but if the words of a tax act
have a plain and ordinary meaning, in common accep-
tation and use, this meaning should be given them.

The Court instructs you further that if, notwith-
standing the fact of the sale of this preparation in
connection with carbonated water, as a soda fountain
beverage, a practically important part of the prepa-
ration is in itself medicinal in character, or if as ad-
vertised to the public, a practically important part of
the merit and effect claimed for it is medicinal in
character, it is subject to the tax and the plaintiff

— no —

v. HENRY A. RUCKER

should not recover. If, on the other hand, you believe
that the medicinal quality of this preparation, either
in itself, or as held out by the company's advertise-
ments to the public, is incidental and so slight as not
to be a material part thereof, it would not be subject
to tax, in the opinion of the Court, and you should
find for the plaintiff.

I repeat that to you, gentlemen, that if you find
from the evidence in this case, that notwithstanding
the fact that very largely this preparation is sold
in connection with carbonated water, across the coun-
ter of soda fountains as a beverage, a practically im-
portant part of its use and effect, in itself or as
claimed for it by advertising matter which is sent out
by The Coca-Cola Company is medicinal in character,
it would be subject to this tax. If, on the other hand,
its use is as a medicinal preparation is incidental,
slight and not material in character, it would not be
subject to the tax, and you should find for the plain-
tiff in this case, the amount in dispute.

Now, gentlemen, it is conceded that the prepara-
tion in question is a compound, and that it is put up
by a private formula, and it comes up to that portion
of the act undoubtedly. The only real question is
whether, notwithstanding its use as a .beverage a
practically important part of the preparation, as I
have stated, in itself or as the company holds it out
to the public, is medicinal in character. The act,
very clearly, in the opinion of the Court, makes those
preparations subject to tax that are held out by ad-
vertising matter, by the parties engaged in selling
them, as medicinal in character, whether they are
really so in themselves or not.

The jury should give all the evidence in this case a
fair consideration. You have had the evidence of sev-
eral physicians who testified as experts in this case,
and you have had the testimony of two practical
chemists who have given you their opinions on the sub-
ject. The jury should give all this evidence a fair

— 117 —

THE COCA-COLA COMPANY

consideration without any kind of favor either to the
government or to the plaintiff. You deal simply with
the question presented to you here, as it has been
presented by the pleadings, by the evidence and the
instructions of the Court.

If the jury believes from all the evidence in this
case that the plaintiff has established by a prepon-
derance of the evidence, the fact that this prepara-
tion which they are selling does not come within the
characterization of the revenue act in question, then
the tax upon it was unlawful and they are entitled to
a verdict at your hands.

If, on the other hand, you do not believe they have
established this fact, if they have not established it to
your satisfaction, you should find for the defendant.

Take the case, gentlemen, and find a verdict.

VERDICT.

Atlanta, Ga., Feb. 5, 1902.

We, the jury, find for the plaintiff ten thousand
eight hundred fifty-eight dollars and seventy-six
cents, with interest.

JOHN M. GREEN, Foreman.

JUDGMENT.

Whereupon, it is considered and adjudged by the
Court that the plaintiff recover of the defendant ten
thousand eight hundred fifty-eight and 76/100 dollars
($10,858.76) principal, and two thousand and seventy-
two and 35/100 dollars ($2,072.35) interest, and

dollars, costs.

February 5, 1902.

Arnold & Arnold, Attorneys for Plaintiff.

U. S. Attorney E. A. Angler, Asst. U. S. Attorney
George L. Bell, Attorneys for Defendant.

Rucker v. Coca-Cola Company (Circuit Court of
Appeals, Fifth Circuit, October 21, 1902). No. 1,161.

— 118 —

v.' HENRY A. RUCKER

In Error to the Circuit Court of the United States
for the Northern District of Georgia. E. A. Angler
and George L. Bell, for plaintiff in error. Reuben R.
Arnold, for defendant in error. Before PARDEE,
McCoRMicK and SHELBY, Circuit Judges.

Per curiam. The judgment of the Circuit Court
is affirmed.

Rucker, Collector, v. Coca-Cola Company (Circuit
Court of Appeals, Fifth Circuit, October 17, 1903),
No. 1,239. In Error to the Circuit Court of the
United States for the Northern District of Georgia.
E. A. Angler, Geo. L. Bell and C. D. Camp, for plain-
tiff in error. Reuben R. Arnold, for defendant in
error. Before PARDEE, McCoRMicK and SHELBY, Cir-
cuit Judges.

Per curiam. As we find that the taxable character
of Coca-Cola, under the revenue act, was settled ad-
versely to the United States in the former adjudica-
tion (117 Fed. 1006, 54 C. C. A. 248) duly pleaded
on the trial, the record herein presents no reversible
error, and the judgment of the Circuit Court is
affirmed.

— 119 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DISTRICT

OF ARKANSAS,
WESTERN DIVISION

229 FEDERAL 224

THE COCA-COLA COMPANY,

v.
J. G. BUTLER & SONS.

FINAL OPINION.

1. TRADE-MARK AND TRADE-NAMES — 1 — INFRINGE-
MENT—DECEPTION OF PUBLIC.

The protection given by l;i\v to trade-marks has for its object
the protection of the owner in his property, and the protection
of the public from deception, by reason of a misleading claim
that the article bearing the trade-mark is the article manufactured
by the owner of the trade-mark, when in fact it is but a substitute.

2. TRADE-MARKS AND TRADE-NAMES— 57— INFRINGE-
MENT—DECEPTION OF PUBLIC.

The use of any simulation of a trade-mark which is likely to
induce common purchasers, exercising ordinary care, to buy the
article to which the trade-mark is allixcd. thereby indicating that
it is the product of the owner of the trade-mark, is unlawful, and
will be enjoined.

X. TRADE-MARKS AND TRADE-NAMES — 68 — UNFAIR
COMPETITION— USE OF TRADE-MARK.

Plaintiff, a manufacturer of a syrup constituting the principal .
ingredients of a beverage sold at soda fountains and in bottles,
made up the syrup in two forms — one for sale through jobbers
for soda fountains, and one intended for use in bottling and sold
by it only to bottlers selected, designated and licensed by it. and
authorized to use thereon its distinctive tops and labels bearing
its trade-mark — there being some differences in the two syrups,
on account of the different purposes to which they were to be put.
It guaranteed its product to be wholesome and uniform, as well
as its cleanliness and excellence of manufacture, and maintained

— 120 —

v. J. G. BUTLER & SONS

an elaborate system for the inspection of the plants of its licensed
bottlers. Defendant purchased from jobbers the syrup intended
for soda fountain use, and used it in manufacturing a bottled
preparation which it was selling under the name of plaintiff's
product, using the tops and labels prepared by plaintiff for its
product. HELD — that this constituted unfair competition, and
would be enjoined.

4. TRADE-MARKS AND TRADE-NAMES— 67— RIGHT TO
MONOPOLY— STATUTORY PROVISIONS.

The monopoly given the owner of a trade-mark by the trade-
mark laws is not forbidden by the Sherman Act (Act July 2,
1890, c. 647, 20 Stat. 209), or any other Act of Congress.

5. MONOPOLIES— 17— SALES OF GOODS— DISCRIMINA-
TION.

Where the manufacturer of a syrup used as the principal ingre-
dient in a beverage and sold by it only to bottlers licensed by
it, guaranteed the purity and quality of the beverage by using
distinctive tops and labels on its bottles, and to protect itself
against claims for damages on the guaranty maintained a system
of inspection of the plants of its licensed bottlers, it did not
violate the Sherman Act, as its requirements were reasonable and
beneficial to the public, in view of its responsibilities and the
right of purchasers to obtain the identical article which they
desired to buy.

6. MONOPOLIES 17— SALES OF GOODS — DISCRIMINA-
TION.

The refusal of such manufacturer to sell its syrup for bottling
to a party other than its licensed bottlers, and to permit such
party to use its trade-mark in connection with the bottled prod-
uct, was not a violation of Clayton Act October 15, 1914, c. 323,
paragraph 3, 38 Stat. 731, providing that it shall be unlawful to
sell goods for use or re-sale, or to fix a price therefor, or dis-
count or rebate from such price on the condition that the pur-
chaser shall not use the goods of a competitor, where the effect
may be to substantially lessen competition or to create a monop-
oly in any line of commerce, in view of the possibility of adulter-
ation and the hardship to the manufacturer of maintaining such
supervision over the bottling as it deemed necessary, if required
to sell to every intending purchaser.

In Equity. Suit by The Coca-Cola Company against
J. G. Butler & Sons. Decree for plaintiff.

The plaintiff seeks to enjoin the defendants, who
constitute a mercantile firm, doing business under the

— 121 —

THE COCA-COLA COMPANY

firm name of J. G. Butler & Sons, from using in con-
nection with the manufacture, advertising, offering
for sale, or sale of any beverage the words " Coca-
Cola," or any like word or words, and in any other
manner infringing upon the plaintiff's rights as
owner of the trade-mark "Coca-Cola" and also seeks
an accounting of the damages sustained by it by rea-
son of the unlawful use of its trade-mark.

The material allegations in the complaint are : That
the plaintiff is now, and lias been ever since 1892,
manufacturing and marketing a syrup for making a
beverage sold to the public under the name of "Coca-
Cola." That it became vested with and entitled to
the sole ami exclusive right to use that trade-mark,
which has been duly registered in the United States
Patent Office on May 14, 1892, under the provisions of
the Act of Congress of March 3) 1891, c. 565, 26 Stat.
1106. That on April 22, 1905, registration of the said
trade-mark was again allowed by the Commissioner
of Patents under the Act of Congress approved Feb-
ruary 20, 1905, c. 592, 33 Stat. 724. That it has manu-
factured and marketed, and is now manufacturing
and marketing, two kinds of said syrup — one designed
and adapted for making a beverage by mixing with
carbonated water at soda fountains in the presence of
the purchaser, which is intended for immediate con-
sumption, and is a fountain drink, and is well known
to the public. The other kind is designed and adapted
to be used, and is used, for manufacturing a carbon-
ated beverage put up and sold for consumption in
bottles; each of them being sold by the plaintiff in
distinctive packages, bearing its trade-mark name on
distinctive labels. That it has at all times insured
and safeguarded the manufacture and bottling of said
carbonated bottled beverage made from its "Coca-
Cola" bottling syrup, by selecting, designating, and
licensing the bottlers using the said bottling syrup,
and inspecting and supervising the manufacture, car-
bonating and bottling of said beverage by said bot-
tlers, so as to safeguard and insure the purchasers

— 122 —

v. J. G. BUTLER & SONS

and consumers of said bottled product as to the qual-
ity, purity and character thereof, and has under such
circumstances and conditions, and none others, al-
lowed and permitted the use of the name "Coca-
Cola," as the trade-mark therefor, and as plaintiff's
guaranty of the authenticity of the said carbonated
and bottled beverage, and plaintiff's supervision, in-
spection and approval thereof and responsibility
therefor. So that in connection with a bottled drink,
the name "Coca-Cola" is plaintiff's guaranty of
genuineness and fidelity that such drink is properly
made of proper materials, and is plaintiff's assur-
ance of cleanliness and excellence of manufacture,
carbonating, bottling, and sale, and is so relied upon
by the purchasers and the public. That it has ex-
pended large sums of money in advertising to the
public that its beverage under its trade-name, can be
had at fountains and in bottles, and that the bottled
product which is offered to the public in bottles, with
plaintiff's trade-mark name "Coca-Cola," applied to
the bottled beverage, means to the public a beverage
produced wholly under conditions which plaintiff
supervises and controls, and one guaranteed through-
out by plaintiff to be so produced, and to be whole-
some, palatable and uniform, and is so understood by
the public. It is then charged that the defendants
have put upon the market in bottles a product some-
what resembling in taste and appearance the plain-
tiff's bottled "Coca-Cola," but which is not plain-
tiff's bottled "Coca-Cola," and had applied to the
crown of the bottles containing said defendant's prod-
uct, and upon labels attached to the bottles, the name
"Coca-Cola," as the trade-mark name therefor, with-
out plaintiff's permission or authority; that by rea-
son thereof the public is being deceived into the belief,
contrary to the fact, that the product of the defend-
ants is the bottled product guaranteed by the plain-
tiff, as aforesaid.

The answer of the defendants pleads that they are
not sufficiently informed as to some of the allegations

— 123 —

THE COCA-COLA COMPANY

that are set out in the complaint, and therefore de-
mand strict proof thereof. They deny that they have
put upon the market in bottles any product resem-
bling in taste and appearance the plaintiff's bottled
"Coca-Cola," but allege the truth to be that the
article they have put on the market is the genuine,
identical article and product known as "Coca-Cola."
They admit that they have applied to the crowns of
the bottles containing such product, and upon labels
attached thereto, the name "Coca-Cola," but deny
that it was done without authority. They allege that
they purchased said product for the identical purpose
to which they have applied the same, from individuals
and corporations who were the lawful owners thereof,
and authorized to sell the same to these defendants
for the purpose of retailing ^he same, bottled and
carbonated as "Coca-Cola," and therefore they deny
that the result of this use by them has been to de-
ceive the public into the belief, contrary to the fact,
that the product of the defendants is the product
guaranteed by plaintiff to be properly made of proper
materials, and made, carbonated, and bottled under
the plaintiff's authority and supervision. They then
plead that the plaintiff, by adopting a system of ex-
clusive contracts, has undertaken to divide the
country, and especially the territory in which the
defendants are operating, into districts, whereby
they have agreed to sell to such persons and corpora-
tions alone, and exclusively thus contracted, which
was done for the purpose of establishing and main-
taining a monopoly in the sale of said product, and
preventing and destroying competition in the sale
thereof, among the different purchasers, and have re-
fused and still refuse to sell and furnish such prod-
uct or commodity to the defendants upon the same
terms and conditions and at the same price as they
are furnishing and selling this commodity to other
purchasers thereof, all of which it is charged is for
the purpose and object of lessening the competition

— 124 —

v. J. G. BUTLER & SONS

and creating a monopoly in the sale of said syrup,
in violation of the laws of the United States.

The cause was submitted upon an agreed statement
of facts. From this it appears : That the plaintiff is
the owner of the trade-mark "Coca-Cola," and it has
been used by it and its predecessor in title since May,
1886. That it was duly registered as a trade-mark
in the United States Patent Office, in conformity with
the laws of the United States, as set out in the com-
plaint. That it has advertised the same throughout
the United States aftd in foreign countries; and that
over $10,000,000 have been expended by the plaintiff
in advertising it. That the following differences,
among others, are made between the syrup "Coca-
Cola" manufactured to be used at fountains, and that
to be sold in bottles: In 1,250 gallons of the finished
product the bottler's syrup contains 1,000 pounds
more sugar than the other. It has 10 per cent, more
coloring matter, to-wit, caramel. It contains more
phosphoric acid, and some percentage less of caffeine,
than does the syrup made to be used at soda foun-
tains. The fountain syrup contains 28 pounds of caf-
feine to 1,250 pounds of the finished product, while
that used in the bottler's syrup contains only 25
pounds of caffeine to 1,250 pounds. That the plain-
tiff in its sales system has two methods by which the
product is sold :

First. The system by which the syrup manufac-
tured for fountain sale is sold to jobbers and dis-
pensers, to be sold from the soda fountain; the job-
bers selling it to the dispensers under a contract that
the plaintiff will supply it only in the original pack-
age, that the jobber is not to sell or offer for sale as
"Coca-Cola" any imitation of or substitute there-
for, and upon compliance with the terms of the con-
tract plaintiff will allow certain rebates to the jobber,
depending upon the quantity bought, provided that the
sales have been to dispensers only, and none to bot-
tlers, or for the purpose of carbonating in bottles.
The dispensers' contract, which he is required to sign,

— 125 —

THE COCA-COLA COMPANY

obligates him that, when "Coca-Cola" is asked for,
he will only supply "Coca-Cola" as manufactured
and furnished by the plaintiff, not to sell or offer for
sale as "Coca-Cola" any imitation of or substitute
therefor, and if he complies with these terms he is to
receive a rebate, depending upon the quantity bought
by him. The plaintiff does not enter into a dis-
penser's contract directly, but only through the job-
ber. The fountain syrup is never sold for the pur-
pose of bottling, and is not made or intended for the
purpose of having the same bottled.

Second. The syrup made for bottling purposes is
sold to two corporations — one "The Coca-Cola Bot-
tling Company," and the other "Coca-Cola Bottling
Company." This sale is made under and by virtue
of contracts entered into between the plaintiff and
the bottling companies. There Kvas an original con-
tract, which was later amended. The original con-
tract was made on the 21st day of July, 1899, and
by this contract the bottling company obligated itself
to establish in the city of Atlanta, Ga., a bottling
plant for the purpose of bottling this syrup, with
carbonic acid and water, and to prepare and put up
in bottles, or other receptacles, a carbonated drink
containing a mixture of "Coca-Cola" syrup, and
water charged with carbonic acid gas under a pres-
sure of more than one atmosphere ; the syrup to be in
proportion of not less than one ounce to eight ounces
of water. It also obligates itself to keep on hand a
sufficient quantity to supply the demand in all the ter-
ritory embraced in the agreement; that it is to buy
all the "Coca-Cola" syrup from the plaintiff, upon
the terms set forth, and it is not to buy any substi-
tute therefor, or other syrup or substances, nor at-
tempt to use or imitate in any article prepared by
them "Coca-Cola" syrup. The plaintiff is also to fur-
nish all necessary labels and advertising matter at
its own cost. The right to use the name "Coca-Cola"
and all the trade-marks and designs for labels then
owned and controlled by the plaintiff, and the right

— 12G —

v. J. G. BUTLER & SONS

to vend such preparation or mixture, bottled or put
up in bottles, in the United States, except the six New
England states and the states of Mississippi and
Texas, is granted to them exclusively; but the right
to use the name, trade-mark and labels is to apply
only to the carbonated mixture described, and is not
to apply to the soda fountain business.

This contract was later amended by requiring the
bottling company to buy all of the "Coca-Cola" syrup
necessary to comply with the agreement directly from
the plaintiff; not to sell or in any way dispose, with-
out the written consent of the plaintiff, of any ' ' Coca-
Cola," except after it is carbonated and bottled. The
labels and advertising matter furnished by the plain-
tiff are to be paid for by the bottling company at what
the actual cost and freight expense may be. By an-
other amendment made to these contracts on April 24,
1915, the provision whereby the bottling company was
to purchase the syrup directly from the plaintiff was
amended by eliminating the condition that the bot-
tling company is to buy all the "Coca-Cola" neces-
sary from the plaintiff. It also eliminates from the
former contracts those provisions by which the bot-
tling company obligated itself not to use any substi-
tute, or substitutes, or to attempt to use or imitate
"Coca-Cola" syrup, and in lieu thereof the bottling
company agreed not to manufacture, deal in, sell,
offer for sale, use, or handle, nor attempt to do so,
either directly or indirectly, any product that is a
substitute for or imitation of "Coca-Cola." By an-
other provision in this last amendment to the former
contracts the plaintiff selects the bottling company as
its sole exclusive customer and licensee, for the pur-
pose of bottling "Coca-Cola" in the territory hereto-
fore acquired by it, and it agrees not to sell its foun-
tain syrup to any one, when it knows that such syrup
is to be used for bottling purposes; that under these
contracts the bottling companies are not permitted to
bottle the syrup manufactured for fountain pur-
poses; that the two bottling companies have, with the

— 127 —

THE COCA-COLA COMPANY

approval of the plaintiff, given the right to certain
local companies, which are established in different local-
ities, for the purpose of bottling the bottling syrup of
the plaintiff; that such a contract was made with the
Little Hock Coca-Cola Bottling Company, for certain
territory which includes the town of Russellville and
county of Pope, where the defendants are carrying on
the business sought to be enjoined by this proceeding.
It is further stipulated that the plaintiff sets the
standard by which its product is to be bottled, and
by a system of inspection and supervision inspects
and supervises the bottling of its products, whereso-
ever made4; that it requires that its bottled product
shall be bottled, using certain proportions, that the
plants must be kept clean, and the cases and bottles
sent out in a sanitary and presentable manner, a close
supervision being kept over the clyiracter of its goods
being sent out; that a minute inspection is main-
tained in regard to the character, purity and whole-
someness of the bottled "Coca-Cola." The bottling
companies have no connection in any way, shape, or
manner with the sale of the fountain product. This
supervision and inspection extends to all plants that
bottle "Coca-Cola," no matter where situated. The
difference between these two products arose from the
fact that it developed, in the process of bottling, that
the product when bottled, stood for a longer time after
its carbonation than did the syrup used at the foun-
tains, and therefore in order to provide for this con-
tingency, a difference had to be made in the bottled
product, and further that the character of the trade
was best supplied by making a specific syrup for the
particular purpose of bottling; that the syrup is not
consumed by the public, only after being mixed with
the proper proportions of water; that the system of
supervision and inspection exercised by the plaintiff
and the parent bottling companies consists of the
following :

In order to see that the product is bottled in a
certain manner, and that the business is properly

— 128 —

v. J. G. BUTLER & SONS

conducted, a system of supervisions has been organ-
ized by the plaintiff, known as the ' * Inspection Depart-
ment." This inspection department has a competent
man at the head, whose duty it is to divide up the
territories in such a manner that they can be covered
advantageously by the inspectors. Five inspectors in
this department operate in the Southern States. The
head inspector routes these different inspectors and
follows them up. A report is required from these in-
spectors from each different plant visited. Samples
of the product are taken from the plant, which prod-
uct is tested in the plant, to see whether or not the
product conforms to the standard established; these
inspectors being trained men. The inspectors are
equipped with gas test gauges and hydrometers and
other instruments to enable them to determine or not
whether the product is being put up according to in-
structions. They carry other gauges and other
things to test each machine used by the bottling plant,
to determine wrhether or not the machines are throw-
ing the proper amount of syrup into each particular
bottle. Samples are taken of the product both be-
fore and after the process of carbonation. These
samples are forwarded to the head inspector at At-
lanta, where they are chemically examined, and if any
difference appears, they must immediately make the
changes necessary to bring them to the standard pre-
scribed by the plaintiff. If necessary, the chemical
expert and a member of the advisory board are sent
to make personal investigations of the plant.

The water used in the carbonating is chemically
tested and the sanitary condition of the plant is in-
vestigated, the latter being one of the main questions
considered at all times. The question of carbonation
in making the bottled product is given strict attention
by the inspectors and chemical experts ; proper car-
bonation depending upon the machinery, the kind of
water, and the temperature of the water used. As
warm water cannot be carbonated, the bottling plants
are required to install cooling plants to get the proper

— 129 —

• -' • • •

• -

: '•

It i- further *tip«ilated that tke defendants ]
IT or in-lirect ly . to bottle either prodar

Coca Cob Comf *any . nor use tke trade-attr

' . ' - .

in the mann f actar? and bottling of b*

and are bottling and pattinr upoa the nttrket a :
net, a bottle of which U fied as erideaee. T:
used in making up thil prodaet br tke defendai
the fountain «rnip maamfaetared by Tke Coca
Company, and which they obtain in tke cour-
trade from jobbers or retailers who have paroi
tke fountain p roduct of tke Coca-Cola Com pv
they bottle it without permission or aoti
the plaintiff, and apply tke trade-mark .Cola

thereto, by nsng tke tope and labels of tke pla
on the product, without authority from any
authorized to give it. These pnrrkaaft are n

n parties who are tke lawful owners there* -f. an
who sell the same to tke defendants in tke due o
of trade. The plaintiff as well as tke bottling •
panies, have refused to sell to the defendants tL
for the purpose of bottling, although tke
offered to purchase and pay therefor, and obj
their using the trade-mark "Coca-Cola" in connec
tion with their bottled product, or to do anythii -
the plaintiff's syrup for the purpose of re-seHic-

.g the same.

Moore, Smith, Moore d Trieber, of LattK? R
Ark d & Rogers, of Chicago. 111., and Camdler.

Thomson d Hirsck, of Atlanta. counsel), for

plaintiff.

v. J. G. BUTLER & SONS

Mehaffy, Reid & Mehaffy, of Little Rock, Ark., for
defendants.

TKIEBEK, District Judge (after stating the facts as
above) :

It is not disputed by the defendants that the plain-
tiff is the lawful owner of the trade-mark "Coca-
Cola," that it is an asset of great value, and that the
defendants are bottling, offering for sale, and selling
a bottled preparation, under the name of "Coca-
Cola," using the tops and labels prepared by the
plaintiff for the preparation bottled under its super-
vision, and furnished by it to those who are engaged
in bottling it, under its authority or license, and that
these tops and labels indicate to the public that it is
the plaintiff's preparation, made under its supervi-
sion and guaranteed by it. Although counsel have
argued many important questions, there are only two
issues, which under the allegations in the bill, answer,
and agreed statements of facts are necessary for the
determination of this case:

(1) That the preparation bottled by the defendants
is made of syrup and sold by the plaintiff, and that
it was purchased by the defendants for the identical
purpose to which they have applied the same, and
from parties who were the lawful owners thereof by
purchase from the plaintiff, but not from the plain-
tiff, nor from its authorized vendees.

(2) That by its manner of doing business, as is
fully set out in the agreed statement of facts, the
plaintiff seeks to establish an unreasonable monopoly
in restraint of trade, and therefore in violation of the
Act of Congress of July 2, 1890, c. 647, 26 Stat. 209,
known as the "Sherman Act," and the amendments
thereto, and the Act of October 15, 1914, c. 323, 38
Stat. 730, and known as the "Clayton Act."

(1, 2) In determining the issues in this case it is
important to keep in mind the well-established prin-
ciple of law that the protection given by law to trade-
marks has a two-fold object: To protect the owner

— 131 —

THE COCA-COLA COMPANY

in his property, and to protect the public from being
deceived by reason of a misleading claim that the ar-
ticle bearing the trade-mark is the article manufac-
tured by the owner of the trade-mark, when in fact it
is not, but a substitute. The use of any simulation of
a trade-mark, which is likely to induce common pur-
chasers, exercising ordinary care, to buy the article
to which the trade-mark is affixed, thereby indicat-
ing that it is the product of the owner of the trade-
mark, is unlawful and will be enjoined. McLean v.
Fleming, 96 U. S. Ufi, 251, 24 L. Ed. 828; Kann v.
Diamond Steel Co., 89 Fed. 706, 711, 32 C. C. A. 324,
:>i}<); Lay ton Pure Food Co. v. Church & D wight Co.,
182 Fed. 24, 34, 104 C. C. A. 464, 474.

(3) As the plaintiff, according to the allegations in
the complaint and the agreed statement of facts, in
addition to selling its product, guarantees it to be
wholesome, palatable and uniform, as well as its
cleanliness and excellence of manufacture, carbonat-
ing and bottling, and for that purpose maintains a
very elaborate system of supervision, it would not
only be an imposition on the public, who purchases
the hot tied preparation, but may cause great damage
to the -plaintiff if permitted.

If a person buying the bottled preparation, which
has all the indicia of having been put up under the
plaintiff's supervision and guaranty, the tops and
labels on the bottles giving assurance of that fact,
should sustain an injury by reason of the fact that it
was improperly prepared, was unclean, contained un-
wholesome ingredients, had insufficient carbonic acid
gas for its preservation, and by reason thereof is un-
fit as a beverage, or for any other cause, due to the
negligence of plaintiff's licensed bottler, is injured,
the plaintiff may be liable to heavy damages. Hav-
ing assumed this guaranty of its bottlers, the plain-
tiff not only has the right, but it is its duty, to take
such steps as are necessary, by a proper system of in-
spection, to guard the public, as well as itself, against
this danger. The well-recognized rule of law is that

— 132 —

v. J. G. BUTLER & SONS

Iho manufacturer of any article of food, drink or
drug intended for consumption, or of any dangerous
articles, may be liable to the ultimate purchaser and
consumer for negligence causing an injury, although
there is no direct contractual relation between them,
such an action resting on tort, and not on contract.
Waters-Pierce Oil Co. v. Deselms, 212 U. S. 519, 29
Sup. Ct. 270, 53 L. Ed. 453; Standard Oil Co. v. Mur-
ray, 119 Fed. 572, 57 C. C. A. 1; Huset v. J. I. Case
Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237,
240, 61 L. R. A. 303; Eiggs v. Standard Oil Co. (C. C.)
130 Fed. 199; Keep v. National Tube Co. (C. C.) 154
Fed. 121; Ketterer v. Armour (D. C.) 200 Fed. 322;
Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, 48
L. E. A. (N. S.) 213, Ann. Gas. 1915C, 140; Thomas
V. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 ; Statler
v. Mfg. Co., 195 N. Y. 478, 88 N. E. 1063 ; Wellington v.
Oil Co., 104 Mass. 64; Roberts v. Brewing Co., 211
Mass., 449, 98 N. E. 95; Norton v. Sewall, 106 Mass.
143, 8 Am. Rep. 298; Bishop v. Weber, 139 Mass. 411,
1 N. E. 154, 52 Am. Rep. 715; Peters v. Johnson, 50
W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St.
Rep. 909; Peterson v. Standard Oil Co., 55 Or. 511,
106 Pac. 337, Ann. Cas. 1912A. 625 ; Tomlinson v. Ar-
mour & Co., 75 N. J. Law 748, 70 Atl. 314, 19
L. R, A. (N. S.) 923; Dixon v. Bell, 5 Maul. & Sel. 198.
The fact that the syrup used by the defendants is
that manufactured by the plaintiff, assuming that it
had been made for bottling purposes, is immaterial,
for the syrup, although the principal ingredient of
the finished product, is only one of several used
for the preparation, when offered to the con-
sumer. To maintain the reputation, and consequently
the favor of the consuming public, it is important to
the manufacturer of the preparation bearing its
trade-mark that it should be wholesome, palatable,
clean, and free from all impure and dangerous sub-
stances, regardless of the fact whether it was bottled
by itself and sold by it directly to the consumer, or
through its licensees. In this case the bill charges,

— 133 —

THE COCA-COLA COMPANY

and the agreed statement of facts admits, that the
plaintiff manufactures two syrups, one for bottling
and the other for fountain trade ; that the syrup for
bottling purposes, differs in several material respects
from that intended for the fountain trade; that the
bottler's syrup contains more sugar, has 10 per cent,
more caramel for coloring purposes, contains more
phosphoric acid, and less caffeine than the fountain
syrup; and these two syrups are put up and sold in
distinctive packages.

The authorities are numerous that, when a manu-
facturer of only one article of food and drink sells it
in bulk, and also puts it up in bottles, the latter bear-
ing a distinctive trade-mark, a purchaser of the article
in bulk will be guilty of unfair competition, and en-
joined, if bottling it and affixing the manufacturer's
distinctive labels upon the goods bottled by him.
Knmss v. Peebles Co. (C. C.) 58 Fed. 585, 592;
People v. Luhrs, 195 N. Y. 377, 89 N. E. 171, 25 L. R.
A. (N. S.) 473; Hennessy v. White, Cox, Manual
Trade-Mark Cases, 377; Browne on Trade-Marks,
910, 759, and authorities there cited. One of the
reasons given for this rule is that, "unless the
manufacturer can control the bottling, he cannot
guarantee that it is the genuine article prepared by
him." To this may be added that he cannot tell
whether it is bottled in so careful a manner as is es-
sential to the preservation of the article and the main-
tenance of its good reputation. This rule, of course
applies with much greater force when there are two
varieties manufactured by the same party and sold
under the same trade-mark, but intended to be placed
on the market for different purposes, as is the case
in the instant cause. Eussia Cement Co. v. Katzen-
stein (C. C.) 109 Fed. 314; Cook & Bernheimer v. Boss
(C. C.) 73 Fed. 203; Thomas G. Plant Co. v. May
Mercantile Co. (C. C.) 153 Fed. 229; Mcllhenny v.
Hathaway (D. C.) 195 Fed. 652; Gillott v. Kettle, 3
Duer (N. Y.) 624; Spalding v. Gamage, 32 R. P. C.
273; Sebastian on Trade-Marks, page 159; Hopkins

— 134 —

v. J. G. BUTLER & SONS

on Trade-Marks, page 275. A case almost identical
with the facts in this case is Charles E. Hires Co. v.
Xepapas (C. C.) 180 Fed. 952.

In Powell v. Birmingham (Yorkshire Relish Case)
14 R. P. C. 730, it was testified that the difference
between the two articles under consideration was
only a pinch of salt, and the Court held that, even in
the case of such a small difference, the defendant had
not proven the identity of their product with the
plaintiff's. Of what benefit would a trade-mark be,
if one buying the article protected by it were permit-
ted to adulterate it, or given an opportunity to do so,
and then offer it to the public as the genuine article,
protected by the trade-mark? The greatest value of
a trade-mark is the reputation established by the ex-
cellence of the article, and the knowledge and appre-
ciation of that fact by the consuming public. An ar-
ticle without any merit can derive no benefit from a
trade-mark, and only a temporary benefit from the
most extensive advertisement. It is like the value of
a "good-will" in an established going concern. It
depends upon the successful operation of the busi-
ness. Without that there is no value to it. Who
would pay for the good will of a business conducted
at a loss! The court is clearly of the opinion that,
upon the facts in this case, the defendants are guilty
of unfair competition.

(4) Do the facts show a violation of the Sherman
Act against monopolies and stifling competition? The
trade-mark laws, like the patent laws, give the owner
a monopoly which neither the Sherman Act nor any
other Act of Congress forbids. It would be a para-
dox to say that the exercise of a right, expressly
granted by law, is unlawful.

(5) Counsel for defendants rely on Dr. Miles Medi-
cal Co. v. Park & Sons Co., 220 U. S. 373, 31 Sup. Ct.
376, 55 L. Ed. 502, and Coca-Cola Co. v. Bennett
(D. C.) 225 Fed. 429. What was decided in the Dr.
Miles Medical Company Case was that the manufac-
turer of an unpatented proprietary medicine cannot,

— 135 —

THE COCA-COLA COMPANY

after an absolute sale of the article, fix the prices for
future sales. The court in its opinion in that case,
holds that the restraint of trade must be determined
by the particular circumstances of the case, and the
nature of the principles which are involved in it, and
wlid her it is reasonable or unreasonable. In Coca-
Cola v. Bennett, there was no question of unfair com-
petition claimed by the plaintiff, which is the cause
of complaint in this case. Nor was there any claim
in that case that the plaintiff guaranteed the purity,
cleanliness, wholesomeness and quality, by using its
distinctive tops and labels on its bottles, and that,
for the purpose of protecting itself against claims for
damages on that guaranty, it maintains a system of
supervisions and inspection, as set out in the agreed
statement of facts herein. Nor did it appear in that
case that the defendants used for bottling the syrup
intended for soda fountains, and which was not suita-
ble for that purpose. The court also found that the
defendants made the preparation in the identical
manner contemplated by the parties. That case is
therefore not applicable. In view of the responsibili-
ties of the plaintiff and the right of the purchasers
to obtain the identical article, which they desire to
buy, the requirements of the plaintiff are reasonable,
and in the end, beneficial to the public.

(6) Are plaintiff's acts in violation of the "Clay-
ton Act"? That act provides (section 3) :

"That it shall be unlawful for any person en-
gaged in commerce, in the course of such com-
merce, to lease or make a sale or contract for sale
of goods, wares, merchandise, machinery, sup-
plies or other commodities, whether patented or
unpatented, for use, consumption or re-sale with-
in the United States or any territory thereof or
the District of Columbia or any insular posses-
sion or other place under the jurisdiction of the
United States, or fix a price charged therefor, or
discount from, or rebate upon, such price, on the
condition, agreement or understanding that the

— 136 —

v. J. G. BUTLER & SONS

lessee or purchaser thereof shall not use or deal
In the goods, wares, merchandise, machinery, sup-
plies or other commodities of a competitor or
competitors of the lessor or seller, where the ef-
fect of such lease, sale or contract for sale or
such condition, agreement or understanding may
be to substantially lessen competition or tend to
create a monopoly in any line of commerce. ' '
This act is invoked by the counsel for the defend-
ants, in view of the agreed statement of facts that:

"The plaintiff, as well as the bottling com-
panies, through whom its syrup is sold to the
retail dealer, have refused to sell to the defend-
ants the syrup for the purpose of bottling, al-
though the defendants offered to purchase and
pay therefor, and objected to their use of the
trade-mark "Coca-Cola" in connection with their
bottled product."

Whether that act is to be construed so as to com-
pel one to sell his wares or manufactures to any one
applying therefor cannot be determined in this case,
as this is not an action to obtain relief 'of that nature,
and is therefore not involved. Any one interested in
that question may consult Union Pacific Coal Co. v.
United States, 173 Fed. 737, 97 C. C. A. 578, and Great
Atlantic & Pacific Tea Co. v. Cream of Wheat Co.
(D. C.) 224 Fed. 566, affirmed 227 Fed. 46— C. C. A.—.
The issue in this case, as has been hereinbefore set
forth, is whether one purchasing one of the ingre-
dients of a preparation, although it be the chief one,
can use it, without permission of the manufacturer,
in such a manner that it may injuriously affect the
manufacturer, the intending purchaser having the
means to adulterate it, and by the use of the trade-
mark and name of the manufacturer sell it to the
public as the genuine article. It would although not
impossible, certainly be a great hardship on the plain-
tiff, if it were required to -permit its preparation to
be bottled in every community throughout the United
States, no matter how small the purchases for that

— 137 —

THE COCA-COLA COMPANY

community may be, and maintain such supervision
over the bottling as under its system it maintains and
deems necessary. By confining its sales to bottling
companies doing business in cities so centrally lo-
cated as to be able to supply the demand for its syrup,
and at the same time, enable it to supervise the bot-
tling under its system, it does all which can be reason-
ably expected of it, and the law demands. The plain-
tiff, like all other manufacturers and dealers, is no
doubt anxious to extend its trade as much as possible,
and self-interest, if nothing else, will induce it to per-
mit its preparation to be bottled in as many places
as the trade, and its own interests, will justify.

The court is of the opinion that the defendants are
guilty of unfair competition, and that the business of
the plaintiff, as conducted, is not in violation of any
of the " anti-trust acts" of the United States. A de-
cree granting a permanent injunction in conformity
with the prayer of the bill may be prepared and sub-
mitted to the court for approval.

— 138 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DIVISION

OF THE EASTERN DISTRICT

OF KANSAS

THE COCA-COLA COMPANY, Plaintiff,

v.
J. G. BUTLEE, J. L. BUTLER, and E. C. BUTLEE,

doing business under the firm name of J. G.
BUTLEE & SONS, Defendants.

FINAL DECBEE.

This cause came on to be heard at this term, and
was argued by counsel; and thereupon, upon con-
sideration thereof, it was ordered, adjudged and de-
creed as follows, viz.:

That the defendants J. G. Butler, J. L. Butler and
E. C. Butler, doing business under the firm name of
J. G. Butler & Sons, or doing business under the firm,
corporate or individual name, and each of them, their
and each of their servants, agents and employes, suc-
cessors, assigns, and all persons claiming or holding
under or through them, or either of them, be and are,
and each of them is hereby perpetually enjoined and
restrained from (1) manufacturing, advertising, of-
fering for sale or selling or in any way disposing of
beverages in bottles, having or using in connection
therewith the crown tops and labels, or either of them,
used on the bottles containing " Coca-Cola " as bot-
tled by the plaintiff, The Coca-Cola Company, or its
licensees, and furnished by said plaintiff for that
purpose to its licensees, or crown tops and labels, or
either of them, in imitation or simulation thereof, or
(2) manufacturing, advertising, offering for sale or
selling, or in any way disposing of beverages in

— 139 —

THE COCA-COLA COMPANY

bottles, having stamped, printed or in any way marked
thereon, or attached thereto, or used in connection
therewith, or on, to or with any case, box, crate, stand
or package of any kind in or upon which said bottles
or bottled beverages are or may be handled, or any
contrivance, artifice or device to advertise the said
bottled beverages, any name, or names, contrivance,
artifice or device in imitation or simulation of the
trade-mark or trade-name of "Coca-Cola," or the
words "Coca-Cola," or any like word or words,
whether alone or in connection with other words or
names, but (3) the said defendants are not enjoined
by this decree from selling or offering for sale or dis-
posing of any of the beverage "Coca-Cola" bottled
by and acquired as a bottled product from the plain-
tiff or its licensees.

That the said plaint iff do have) of and recover from
the defendants, J. G. Butler, J. L. Butler, and E. C.
Butler, doing business under the name of J. G. Butler
& Sons, the profits, gains and advantages which said
defendants, or either of them, have received or made,
or which have arisen or accrued to them, or either
of them, from the infringing by them of the said
plaintiff's trade-name and trade-mark of "Coca-
Cola" by the making, manufacturing, advertising,
offering for sale or selling of any beverage in bottles,
having used in connection therewith the name "Coca-
Cola" or any like word or words, whether alone or
in connection with other words or names, or any other
name, contrivance, artifice, or device in imitation of
said plaintiff's trade-name and trade-mark of "Coca-
Cola," or by the use of the crown tops and labels, or
either of them, used on the bottles containing the
beverage "Coca-Cola" as bottled by the plaintiff or
its licensees and furnished by the plaintiff for that
purpose to its licensees, or any crown tops and labels,
or either of them, in imitation or simulation thereof.

That upon motion of said plaintiff at any time dur-
ing the life of this decree, but not otherwise, there be
a reference made to the standing master in Chancery

— 140 —

v. J. G. BUTLER, et al.

of this court to ascertain and take and state to
this court an account of the number of bottles of
beverages manufactured and sold, or manufactured or
sold by the said defendants, or either of them, and also
the gains, profits and advantages which the said de-
fendants, or either of them, have received or made,
or which have arisen or accrued to them, or either of
them, from infringing the rights of the said plaintiff
by the manufacturing and selling or manufacturing
or selling of beverages in bottles, having used in con-
nection therewith the tops or labels as aforesaid, or
the words "Coca-Cola" or any like word or words,
whether alone or in connection with other words or
names, or using any name or names, contrivance, ar-
tifice or device in imitation of plaintiff's trade-name
and trade-mark of "Coca-Cola."

That the said plaintiff on such accounting have the
right to cause an examination of the defendants, and
each of them, and their and each of their servants,
agents and employes, or any other witnesses as may
be necessary to take such accounting, and also the
production of books, vouchers and documents of
which said defendants and their, and each of their
attorneys, servants, agents and employes may be pos-
sessed, and cause them to attend for such purposes
before the said master from time to time as such mas-
ter shall direct.

That the said plaintiff do recover of said defendants
its costs, charges and disbursements in this suit, to
be taxed, and for which costs, charges and disburse-
ments execution may issue.

And thereupon in open court the said defendants,
and each of them, by their solicitors, Meliaffy, Reid &
Meliaffy, duly waived service upon themselves of the
writ of injunction issuing out of this court, directed
to themselves, their agents, servants, employes, suc-
cessors, assigns and all persons claiming or holding
under or through them, or either of them, and

— 141 —

THE COCA-COLA COMPANY

enjoining them and each of them in manner and form
as in the above and foregoing decree specified, and
duly accepted notice of said decree and the terms
thereof.

JACOB TRIEBER, Judge.

I

— 142 —

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE NORTHERN
DISTRICT OF ALABAMA

No. 220— FEBRUARY 20, 1912

THE COCA-COLA COMPANY,

v.
DEACON BROWN BOTTLING COMPANY, et al

CANDLER, THOMSON & HIESCH, Atlanta, Georgia,
PERCY, BENNERS & BURR, Birmingham, Alabama,
Solicitors and of Counsel for Complainant.

SAMUEL B. STERN, Birmingham, Alabama,
PERKINS BAXTER, Nashville, Tennessee,
For Defendants.

— 143 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN

DISTRICT OF ALABAMA,

SOUTHERN DIVISION

200 FEDERAL 105

No. 220— FEBRUARY 20, 1912

THE COCA-COLA COMPANY,

v.
DEACON BROWN BOTTLING COMPANY, et al.

1. TRADE-MARKS AND TRADE-NAMES (Sec. 93)— VA-
LIDITY—EFFECT — OF REGISTRATION — EVIDENCE.

Evidence hold to establish the exclusive use of the words
"Coca-Cola" as a trade-mark in interstate commerce by the Coca-
Cola Company for more than ten years next preceding February
20, 1905, so that its registration thereafter made it a valid trade-
mark, under Act February 20, 1905, c. 592, Sec. 5 (1>). 33 Stat.
725 (U. S. Comp. St. Supp. 1911, p. 1461), reg-mlless of the
descriptive character of the words.

2. MONOPOLIES (Sec. 21)— SUIT FOR INFRINGEMENT-
DEFENSES.

That a manufacturer's sale contracts may be invalid, as in
violation of Sherman Anti-Trust Act July 2, 1890, c. 047. Sec. 1,
20 Stat. 209 (U. S. Comp. St. 1901, p. 3200), is no defense to
a suit for infringement of its trade-mark.

3. COURTS (Sec. 310)— FEDERAL COURTS— PARTIES-
JOINDER.

Merely proper or even necessary parties are not required to be
joined in a federal court, where the result would be to defeat its
jurisdiction.

— 144 —

v. DEACON BROWN BOTTLING COMPANY, et al.

4. TRADE-MARKS AND TRADE-NAMES (Sec. 95)— SUIT
FOR INFRINGEMENT— PRELIMINARY INJUNCTION.

A preliminary injunction granted to restrain infringement of
the trade-mark "Coca-Cola."

In Equity. Suit by the Coca-Cola Company against
Deacon Brown Bottling Company and others. On
motion for preliminary injunction. Motion
granted.

Percy, Benners & Burr, of Birmingham, Ala., and
Candler, Thomson & Hirsch, of Atlanta, Ga., for com-
plainant.

Samuel B. Stern, of Birmingham, Ala., and Perkins
Baxter, of Nashville, Tenn., for defendants.

GKITBB, District Judge :

The right of complainant to the use of the words
" Coca-Cola" as a technical trade-mark under the act
of 1881 is doubtful; at least, in view of the fact
that the words are admittedly suggestive, and
probably merely descriptive of the constituents of
the beverage, and not subject to be appropriated as a
trade-mark. On motion for a preliminary injunction,
the complainant is required to make his right clear,
and under this claim has not succeeded in doing so to
my satisfaction.

(1) The evidence, however, satisfied me that the
complainant and its predecessors in title to the trade-
mark have had actual and exclusive use of the com-
bined words "Coca-Cola" for at least 10 years
April 1, 1905, the date of the taking effect of the act
of February 20, 1905. Under this act the trade-mark
was again registered. The act, as construed, provides
that 10 years' actual and exclusive user of the trade-
mark confers the right to register it as a valid trade-
mark, though the words are merely descriptive. For
this reason, and in view of the facts shown by the
affidavits, I think the complainant is entitled to the
benefit of the trade-mark; it having been shown to

— 145 —

THE COCA-COLA COMPANY

have acquired a secondary meaning, indicative of
origin and ownership or manufacture of "Coca-Cola"
by complainant, by such user, in addition to the pre-
sumption, from a user 10 years before the enactment
of the statute, that it had acquired such secondary
meaning.

Infringement is shown, if the trade-mark is valid,
without conflict. The evidence does not show that a
deleterious substance is included in the formula, or
purposely introduced into the beverage, and there is
not sufficient showing that complainant is disentitled
to protection upon that ground.

(2) Alleged invalidity and illegality of the dispens-
ing contract, because of the Sherman Act, is no
ground for denying the complainant protection
against an infringement of its trade-mark, since
awarding such relief does not involve the enforcement
of the alleged illegal contract.

(3) The licensees of complainant are not exclusive
licensees, and hence not necessary, but at most only
proper, parties; and as the Birmingham company is
a citizen of Alabama, the making of it a party would
deprive the court of jurisdiction of the case, so far
as it seeks relief, at least, from unfair competition,
and apart from the registered trade-mark. Merely
proper and even necessary parties are not required to
be joined, when the result is to defeat jurisdiction.
Complete justice can be done as between the present
parties to the bill.

Complainant has sufficient interest in the subject-
matter of the suit to maintain it. It retains title to
the trade-mark and is directly interested in the in-
fringement of it, with reference to even bottled
goods, since the diminution of sales, by infringement
of the bottlers, reflects on its sales to the bottlers.

The act of February 20, 1905, does not seem to me
to be open to the constitutional objections asserted
against it by respondents.

(4) The probability of complainant's ultimate suc-
cess seems to me great enough to justify the issue of

— 146 —

v. DEACON BEQWN BOTTLING COMPANY, et al.

the temporary injunction. Allowance of damages for
infringement is an inadequate remedy to plaintiff, be-
cause of the impossibility of any accurate measure-
ment of its accrued damages and the uncompensated
inroad on its good will by continued use of defend-
ant's mark. The same may be said of defendant's
right to indemnify on an injunction bond. However,
the defendant can continue its business, using a dif-
ferent mark, or none at all, so that there will not be
a total interruption of its business; and the trial of
the cause can be speeded to final order by any rea-
sonable decree desired by defendant, and all reason-
able protection given it by requiring the execution of
a proper injunction bond.

I think the greater probability of injury, not capa-
ble of being indemnified against, is with the denial of
the temporary injunction.

— 147 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN

DISTRICT OF ALABAMA,

SOUTHERN DIVISION

THE COCA-COLA COMPANY, Complainant,

v.
DEACON BEOWN BOTTLING COMPANY, et al,

Respondents.

DECREE.

This cause coming on for final hearing, and being
regularly called, it is ordered, adjudged and decreed
by the Court that the temporary injunction hereto-
fore rendered in said cause, be and the same hereby
is made in all respects permanent.

It is further ordered, adjudged and decreed that
the complainant has in open court remitted its claim
for any damages.

It is further ordered, adjudged and decreed that
all the costs for this proceeding be taxed against re-
spondents, for which let proper execution issue.

W. I. GrRTJBB, Judge.

— 148

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DIS-
TRICT OF OKLAHOMA

216 FEDERAL 264

JULY 15, 1914

THE COCA-COLA COMPANY,

v.
BEANHAM, et al.

1. TRADE-MARKS AND TRADE-NAMES 70 — UNFAIR
COMPETITION— ACTS CONSTITUTING.

Plaintiff prepared and sold a beverage called "Coca-Cola" and
defendants one called "Koke," both of which were made from
syrups mixed with carbonated water, put up in bottles, and also
served by the glass. Defendant's bottles were slightly taller than
plaintiff's. .The bottles of each party had a tin cap over the
stopper, with the name of the beverage in script thereon, but it
was the custom of dealers in serving the two beverages to remove
the tin caps so that the purchaser did not see the name. Defend-
ants sold exclusively to dealers. The color of the two beverages
was similar, but it appeared that there were 181 beverages having
practically the same color as Coca-Cola. Defendants neither sold
Koke for Coca-Cola nor advised their customers to do so. HELD,
that defendants were guilty of no unfair competition.

2. TRADE-MARKS AND TRADE-NAMES 73— ORIGIN OR
ADOPTION OF NAME.

That certain purchasers of "Coca-Cola," prepared and sold by
plaintiff, referred to it as "Koke" did not entitle plaintiff to en-
join defendants from selling a somewhat similar beverage under
the name "Koke," on the theory that by adoption or user the name
"Koke" had become a secondary trade-name of plaintiff's product,
where plaintiff had neither adopted nor used such name in con-
nection with its beverage.

— 149 —

THE COCA-COLA COMPANY

In Equity. Suit by the Coca-Cola Company against
Joseph D. Branham and another, partners doing
business as the Sand Springs Bottling Works.
Temporary restraining order dissolved, and bill
dismissed.

Candler, Thomson & Hirsch, Atlanta, Georgia, Dil-
Itird & Blake, Tulsa, Oklahoma, for plaintiff.

Randolph, Haver & Shirk, Tulsa, Oklahoma, for de-
fendants.

YOUMANS, District Judge:

This is a suit in equity to enjoin the defend-
ants from infringement of the trade-name of plain-
tiff, and to prevent unfair competition. There is
no evidence tending to show fhat defendants have
been guilty of infringement of plaintiff's trade-
name. The facts with regard to the allegation
of unfair competition are as follows: The trade-
name of plaintiff's product is ' 'Coca-Cola." The
defendants prepared and sold a beverage which is
called "Koke. " Both beverages are made from
syrups mixed with carbonated water. Both are put
up in bottles, and are also served by the glass at cold
drink stands. The bottles containing Koke are a little
taller than those containing Coca-Cola. The bottles
containing each beverage have a tin cap over the
stoppers. The words Coca-Cola and Koke appear in
script on these tin caps. Coca-Cola and Koke are
similar in color. Defendants sold to dealers exclu-
sively. It appears in testimony that in some instances
persons wanting Coca-Cola would say, "Give me a
dope," or "Give me a Koke." There is also proof
to the effect that two or three dealers in Tulsa gave
Koke to their customers when they had called for
Coca-Cola. There is no proof that the defendants sold
Koke for Coca-Cola, or advised their customers to do
so. In that respect this case differs from the case of
Coca-Cola Co. v. Gay-Ola Co., 200 Fed. 720, 119 C. C.

— 150 —

v. BRANHAM, et al.

A. 164. In that case the facts are set out as follows :

' ' Defendant claimed to have discovered com-
plainant's formula, and to be in fact making the
same thing. It adopted for its product * ' the
word 'Gay-Ola/ It proceeded to bring this
product into public notice by some advertising
under its own name and by some other methods
not criticized by complainant, all to an extent not
distinctly shown by the record. It also wrote a
series of letters to bottling companies which were
engaged in bottling Coca-Cola, which letters were
to the effect that it would sell the bottler Gay-Ola
for a less price than he was paying for Coca-
Cola; that the two articles were just alike, and
no one could tell the difference; that the bottler
could, if he wished, substitute Gay-Ola for Coca-
Cola and his patrons would never know the dif-
ference; that several bottlers, who had been
handling Coca-Cola, were doing this successfully
and without discovery; and that, if the bottler
desired, defendant would ship him Gay-Ola in
plain, unmarked packages, so that his dealings
with defendant would not be observed. Several
of the letters in the record are of this substantial
effect, though they use different forms of expres-
sions, and some only by hint and innuendo convey
the invitation to substitute and so to deceive the
final purchasers. Defendant also sent letters to
soda fountain proprietors, setting out the cheap
price and the merits of Gay-Ola and its identity
with Coca-Cola, and quoting from a testimonial
of a soda fountain proprietor : ' No one can tell it
from Coca-Cola, and I sell it for Coca-Cola, and
every one says I have the best Coca-Cola in the
city.' On these letters, the defendant added the
postscript : ' For your information, beg to state
that we are shipping twenty-one Coca-Cola bot-
tlers. "Nuff said." ' "

Upon those facts it was held by the Court of Ap-
peals for the Sixth Circuit that a case of unfair

— 151 —

THE COCA-COLA COMPANY

competition had been made out in that defendant sold
its product "as and for Coca-Cola. " Nothing appears
in the testimony in this case connecting defendants
with any effort to sell their product for Coca-Cola.
There is nothing to show that they had such intention.
In the case of Coats v. Merrick Thread Co., 149
U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847, the court
said :

"Bival manufacturers may lawfully compete
for the patronage of the public in the quality and
price of their goods, in the beauty and tasteful-
ness of their including packages, in the extent of
their advertising, and in the employment of
agents, but they have no right, by imitative de-
vices, to beguile the public into buying their
wares under the impression they are buying those
of their rivals. " j

That was a suit charging unfair competition in the
manufacture and sale of thread. It appeared in evi-
dence that dealers had delivered to purchasers the
thread of the defendants when they had been asked
for that of plaintiff. On that point the court said:

"We think the defendants have clearly dis-
proved any intention on their part to mislead the
dealers who purchase of them. Indeed, such
dealers could not possibly fail to know what they
were buying, and the fraud, if any, was practiced
on the buyer of a single or a small number of
spools, who might be induced to purchase the
thread of the defendants for that of the plain-
tiffs."
Further in the opinion the Court said :

"If the purchaser of such thread desires a par-
ticular make, he should either call for such, in
which case the dealer, if he put off on him a dif-
ferent make, would be guilty of fraud, for which
the defendants would not be responsible, or should
examine himself the lettering upon the spools. ' '
It is true that it appears in testimony that it is the
custom of dealers, in serving the two beverages, to

— 152 —

v. BEANHAM, et al.

remove the tin caps from bottles, so that the purchaser
does not see the name thereon, but that would be true
as to any beverage of like or similar color to Coca-
Cola. According to the testimony of plaintiff's agent,
there are 181 beverages having practically the same
color as Coca-Cola. Defendants cannot be held re-
sponsible for what their customers did without aid,
suggestion, or inducement from them.

Plaintiff also argues that "Koke" has become the
" secondary name" of its product, because it appears
from the proof that some persons desiring that prod-
uct say to the dealer, "Give me a Koke." A trade-
name may be acquired by adoption or user. In their
brief, counsel for plaintiff quote the following from
38 Cyc. 765 :

"Trade-names are acquired by adoption and
user and belong to the one who first used them
and gave them a value."

But plaintiff has never used the word "Koke" in
connection with its product. It has taken and used
the name Coca-Cola. The use of the word "Koke,"
as applied to the product of the plaintiff, has been,
so far as the testimony shows, by persons upon their
volition without being moved thereto by defendants.
If the use of the name had been observed by defend-
ants, and it was afterwards adopted by them with the
purpose and intention of taking advantage of that
fact and to engage in the manufacture and sale of a
beverage and call it "Koke," and sell it "as and for
Coca-Cola," then a case of unfair competition would
undoubtedly be made out.

Assuming that there is such a thing as a secondary
trade-name, the right to its exclusive use must de-
pend upon adoption and use just as in the case of a
primary name. There is such a thing as a name hav-
ing acquired a secondary meaning. Elgin National
Watch Co. v. Illinois Watch Case Co., 179 U. S. 665,
21 Sup. Ct. 270, 45 L. Ed. 365; Bates Mfg. Co. v. Bates
Numbering Machine Co. (C. C.) 172 Fed. 892. But
the facts in this case do not call for an application of

— 153 —

THE COCA-COLA COMPANY

that rule. The relief sought here is the prohibition
of the use of a name that the defendants have neither
adopted nor used. There is nothing to show that the
defendants have neither adopted or were using the
name for the purpose of selling the beverage manu-
factured by them for Coca-Cola.

The temporary restraining order will be dissolved
and the plaintiff's bill dismissed.

I

— 154

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE SOUTHERN
DISTRICT OF NEW YORK

2 T. M. R. 234

THE COCA-COLA COMPANY,

v.
WILLIAMSBUEGH STOPPEE COMPANY, et al.

THE COCA-COLA COMPANY,

v.
WITTEMANN BEOS., CAVALIEEE, et al.

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
HARRY D. NIMS, New York City,
For Complainant.

KIERNAN & MOORE and SPROULL, HARMON & SPROULL,
For Defendants.

— 155 —

THE COCA-COLA COMPANY

SOUTHERN DISTRICT OF NEW YORK
2 T. M. R. 234

JUNE 3, 1912

THE COCA-COLA COMPANY,

v.
WILLIAMSBURGH STOPPER COMPANY, et al.

THE COCA-COLA COMPANY,

v.
WITTEMANN BROS., CAVALIERE, et al.

1. UNFAIR COMPETITION— IMITATION OF FORM OF
MARK.

The name "Kspo-Cola" is not in itself an infringement upon the
trade-mark "C'oea-('ola.v Imt the use of a style of script in imita-
tion of that employed hy the complainant will be enjoined.

2. UNFAIR COMPETITION— IMITATION OF COLOR OF
BEVERAGE.

The manufacturer of a beverage to which a brown color is im-
parted by the use of caramel cannot enjoin the manufacturer of
another beverage from coloring his article in the same color and
shade as the complainant's whether by the use of the same or
of any other coloring medium.

In Equity. On motions for preliminary injunctions.

Candler, Thomson & Hirsch, Atlanta, Georgia, and
Harry D. Nims, for complainant.

Kiernan & Moore and Sproull, Harmon & Sproull,
for defendants.

— 156 —

v. WILLIAMSBUBGH STOPPER COMPANY, et al.

HOUGH, J. :

This matter having been heard both on the orig-
inal motion and on the settlement of an inter-
locutory decree, two questions were reserved for
further consideration:

1st. Whether the defendant Esposito should be re-
strained from using his trade-mark "Espo" written
or printed in that particular form of script long used
by complainant, and,

2nd. Whether complainant is entitled to prevent de-
fendants from coloring their product with caramel so
as to produce that brown color said to be character-
istic of Coca-Cola.

As to the first point I am now convinced that the
complainant is entitled to the relief asked. "Cola"
is admittedly a descriptive word in which complainant
is entitled to no special or exclusive right. Neverthe-
less, the affidavits submitted are fully persuasive to
the effect that "soft drinks," to which the word
"Cola" can properly be applied, owe, if not their in-
troduction, certainly their popularity wholly to the
long-continued efforts of complainant.

Esposito may use the word "Cola" and may use
the word "Espo," but when he expresses either or
both of those words in a style of script commercially
unheard of except for advertising purposes, I am per-
suaded that he goes too far.

As to the second point, my conclusion is against the
complainant, and for the following reasons:

1. Despite the affidavit of Dr. Chandler, I can not
persuade myself that caramel is wholly destitute of
flavoring properties. I do not find this fact asserted
in the dictionaries, and it is well known that caramel
is commonly used in domestic cookery, and that (as
domestically prepared, at all events) it has flavor I
am sure. Since preliminary injunctions are always
matters of grace, I think I am entitled to consider
even something based on personal experience.

2. There is a complete lack of direct authority upon
the point urged by complainant's counsel, and on

— 157 —

THE COCA-COLA COMPANY

familiar principles, this might well be considered
enough to avoid a preliminary injunction where no
immediate and overwhelming injury is to be expected.

3. There are reported decisions in which the legal
difficulty of approximating even for wrappers any
given color is dwelt upon. To be sure, the door is
left open for further consideration by Leschen Co. v.
Broderick, etc., Co., 201 U. S. 166, but there are very
appropriate remarks on the danger of permitting the
appropriation of color in Diamond Match Co. v.
Saginaw Match Co., 142 Fed. Eep. 727. The litiga-
tion over Elastic Sea Drawers is a perfect instance
of the uncertainty at present attending the matter
(134 Fed. Eep. 366, 154 Fed. Eep. 914, 158 Fed. Eep.
1020). In this last series of litigations I am respect-
fully of the opinion that the decision of the fourth
circuit is the better. ^

4. The papers submitted on these motions contain
no evidence of any immediately expected injury; it
is not shown that any damage has occurred, and they
do not persuade me that any damage will occur. This
is a good reason for refusing a preliminary injunc-
tion.

5. The foregoing positions are mostly negative, and
do not really advance the discussion of a question that
is sure to come up hereafter.

How far the courts can go — or should go — in safe-
guarding one man's private business is a very deli-
cate question, and many of the solutions hitherto at-
tempted are far from happy. Instances of this in the
appellate court of our own circuit are the cases affect-
ing Charteuse, Dr. Eeed's Cushion Shoe, and within
the last few weeks the as yet unreported decision in
the matter of the Waterman Pen Company.

It is in my opinion a mistake for courts to go be-
yond the broad and very general principles of the law
of unfair competition.

Being also of opinion that, more and more, men of
experience are departing from the doctrine that the
basis of unfair competition law is the protection of

— 158 —

v. WILLIAMSBURGH STOPPER COMPANY, et al.

the public, and coming to the firm proposition that
what is entitled to protection is complainant's prop-
erty rights, the basic question is always this: What
is the thing which the alleged infringer has the right
to make and sell?

Here the thing is to be dissociated from all such
extraneous matter (however important) as trade-
marks, packings, wrappers, dress, advertising, and
the like.

Every observer has probably noted some things in
common use made by many manufacturers, yet re-
sembling each other, especially in color; thus there
are many white soaps, red dentifrices, and green hair-
washes, and many people know that these colors
are no essential. In this prevailing similarity of color
there is a certain amount of imitation. I do not think
it can be avoided, not that it should be prevented.
If one manufacturer can appropriate a brown summer
drink others in other businesses can do the like — the
primary colors are soon exhausted, and it needs very
little of the spirit of prophecy to see the courts regu-
lating shades of color as between different proprie-
tors, with results beside which some judicial efforts
in the way of labels would rank very high.

As applied to this case, I think that not only are
Cola drinks open to the world, but known Cola drinks
are similarly open, or, in other words, that the un-
patented article made by complainant is a thing
(color and all) which anyone can make and vend in
competition with complainant, and ought to be per-
mitted so to do.

It seems to me that the bread cases, of which the
last is Fox Co. v. Best Baking Co., 209 Mass. 251,
measurably support the statement above insufficiently
made.

The injunction orders have been signed along the
lines indicated.

NOTE.

Since the filing of the memorandum herein on June
3, 1912, the complainant has called my attention to

— 159 —

THE COCA-COLA COMPANY

the fact that its counsel considers that the use of cara-
mel or any other particular substance "to produce
that brown color said to be characteristic of Coca-
Cola" is unimportant.

As I now understand it, the proposition is that com-
plainant wishes to prevent defendants from color-
ing their product (with anything) so as to produce
said brown color. If the proposition considered be
stated as the complainant now states it, my conclu-
sion would be the same as before. As a matter of
fact, however, complainant does use caramel and so
do the defendants; caramel happens to be brown,
though doubtless it may be of many shades of brown.
I think the defendants may choose and use the same
shade of brown as does the complainant just as freely
as any butter manufacturer can make any butter of
the same shade of yellow as that^aifected by the most
popular brand he knows of — butter, I believe, being
naturally whitish in color, at most seasons of the year.

— 160 —

v. WILLIAMSBURGH STOPPER COMPANY, et al.

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF NEW YORK

THE COCA-COLA COMPANY,

Complainant,
v.

DECREE

WILLIAMSBUEGH STOPPER
CO., THOMAS ESPOSITO,

doing business as THE ESPO
BOTTLING CO., and WITTE-
MANN BROTHERS,

Defendants.

INJUNCTION.
E. 9-133.

This cause coming on to be heard on complainant's
motion for a final decree, the complainant appearing
by its solicitors Candler, Thomson & Hirscli, of At-
lanta, Georgia, and Harry D. Nims and Colby & Gold-
beck, of New York City, and the defendant Williams-
burgh Stopper Co. appearing by Sproull, Ilarmer &
Sproull, of New York City, and it appearing to the
court that the issues involved herein have been settled
and agreed upon by the parties hereto, and the de-
fendant Williamsburgh Stopper Co. agreeing to con-
sent to the entry of a final decree in the form fol-
lowing : Now, on motion of Harry D. Nims, of counsel
for the complainant, it is

Ordered, adjudged and decreed that the defendant
Williamsburgh Stopper Co., and its agents, servants,
clerks, employees, and all persons claiming under, by
or through it, and each of them, be and they hereby
are perpetually enjoined and restrained :

1. From in any manner manufacturing, selling, or
offering for sale any label, cap, stopper, or adver-
tising matter containing any colorable imitation of

— 161 —

THE COCA-COLA COMPANY

the name " Coca-Cola, " or of the form in which the
same name has long been and now is used by com-
plainant ;

2. From any imitation of complainant's name,
label, cap, or stopper, so contrived as to lead to the
belief, or to be calculated to lead to the belief, that
the article to which the same is attached is or con-
tains the product manufactured and sold by the com-
plainant, and from representing in any manner or
form, directly or indirectly that any soft drink or
beverage not manufactured by the complainant herein
is ' ' Coca-Cola, " and from attempting to pass off, in
any way, any syrup or beverage not made by the
complainant herein, as and for "Coca-Cola."

3. From in any manner manufacturing, selling, or
offering for sale, any caps, labels, stoppers, or adver-
tising matter containing the name "Espo-Cola" in
any form which is a colorable imitation of complain-
ant's trade-mark.

JULIUS M. MAYEK,
Judge of the U. S. District Court.

We consent to the entry of the foregoing decree.

Sproull, II armer & Sproull,

Atty. for Deft., Williamsburgh Stopper Co.

Candler, Thomson & Hirsch,
Colby & Goldbeck,
Harry D. Nims,

Solicitors for Complainant.

Endorsed: U. S. District Court, S. D. of N. Y., filed
Jan. 28, 1914.

UNITED STATES OF AMERICA. )

> ss *
SOUTHERN DISTRICT OF NEW YORK. $

I, ALEXANDER GILCHRIST, JR., Clerk of the District
Court of the United States for the Southern District

— 162 —

v. WILLIAMSBURGH STOPPER COMPANY, et al.

of New York, do hereby Certify that the Writings
annexed to this Certificate, namely, Final Decree of
Injunction against Williamsburgh Stopper Company,
filed January 28, 1914, in the case entitled The Coca-
Cola Co., against Williamsburgh Stopper Co., Equity
No. 9-133, have been compared by me with their orig-
inals on file and remaining of record in my office ; that
they are correct transcripts therefrom and of the
whole of the said original.

In Testimony Whereof, I have hereunto subscribed
my name and affixed my seal of the said Court at the
City of New York, in the Southern District of New
York, this 22nd day of August, in the year of our Lord
One Thousand Nine Hundred and Twenty-two, and of
the Independence of the said United States the One
Hundred and Forty-Seventh.

(Seal) ALEX. GILCHEIST, JE., Clerk.

— 163 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF NEW YORK

THE COCA-COLA COMPANY,

Complainant,
v.

WILLIAMSBURGH STOPPER FlNAL DECREE

CO., THOMAS ESPOSITO, >

1-1 • mTjTT. ircioX INJUNCTION

doing business as THE ESPO

BOTTLING CO., and WITTE-
MANN BROTHERS,

Defendants.

Q

This cause coming on to be heard on Complainant's
motion for a final decree, the Complainant appearing
by its solicitors, Candler, Thomson & Hirsch, of At-
lanta, Georgia, and Harry D. Nims, and Colby &
Goldbeck, of New York City, and the defendant Witte-
mann Brothers appearing by Kiernan & Moore, of New
York City, and it appearing to the Court that the is-
sues involved herein have been settled and agreed
upon by the parties hereto, and the defendant Witte-
man Brothers agreeing to consent to the entry of a
final decree in the form following: Now, on motion
of Harry D. Nims, of counsel for the Complainant,
it is

Ordered, Adjudged and Decreed that the defendant
Wittemann Brothers, and its agents, servants, clerks,
employees, and all persons claiming under, by or
through it and each of them, be and they hereby are
perpetually enjoined and restrained—

1. From in any manner manufacturing, selling, or
offering for sale any label, cap, stopper, or advertis-
ing matter containing the name "Coca-Cola" or any
colorable imitation thereof, or of the form in which
the same name has long been and now is used by the
Complainant ;

— 164 —

v. WILLIAMSBURGH STOPPER COMPANY, et al.

2. From any imitation of Complainant's name,
label, cap, or stopper, so contrived as to lead to the
belief, or to be calculated to lead to the belief, or to
be calculated to cause the public to believe, that the
article to which the same is attached is or contains the
product manufactured and sold by the Complainant,
and from representing in any manner or form, di-
rectly or indirectly that any soft drink or beverage not
manufactured by the Complainant herein is "Coca-
Cola," and from attempting to pass off, in any way,
any syrup or beverage not made by the Complainant
herein, as and for "Coca-Cola."

January 7, 1914.

J. M. MAYER,
United States District Judge.

We consent to the entry of the foregoing decree.

Kiernan & Moore,

Solicitors for Deft. Wittemann.

Endorsed :

U. S. District Court, S. D. of N. Y., filed Jan. 15,
1914.

*

UNITED STATES OF AMERICA,
SOUTHERN DISTRICT OF NEW YORK.

I, ALEXANDER GILCHRIST, JR., Clerk of the District
Court of the United States for the Southern District
of New York, do hereby Certify that the Writings an-
nexed to this Certificate, namely Final Decree of In-
junction against Wittemann Bros., filed Jan. 15, 1914,
in the case entitled The Coca-Cola Company v. Wil-
liamsburgh Stopper Company, et al., Equity 9-133,
have been compared by me with their originals on file
and remaining of record in my office ; that they are
correct transcripts therefrom and of the whole of the
said originals.

— 165 —

THE COCA-COLA COMPANY

In Testimony Whereof, I have hereunto subscribed
my name and affixed my seal of the said Court at the
City of New York, in the Southern District of New
York, this 22nd day of August, in the year of our
Lord One Thousand Nine Hundred and Twenty-two,
and of the Independence of the said United States
the One Hundred and Forty-seventh.

ALEX. (jiLCHRisT, JE., Clerk.

— 166 —

No. 34— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
FRANK F. MYKRANTZ, Defendant.

SATER, District Judge :

The charge is unfair competition. The case was
well tried and ably argued. Excepting certain affi-
davits and two depositions, the evidence was all taken
in open court. Whatever advantage accrues from ac-
quaintance with local situations is to a considerable
degree present. The several drug stores and places
of business specifically mentioned in the record, in
which soft drinks are sold, are in well known local-
ities. The defendant's store at the southwest corner
of Poplar Avenue and North High Street and at
No. 23 South High Street, and those of Hatton Bros.,
The Perfecto Cigar Company, The Busy Bee Candy
Kitchen, Foeller, May Drug Company, Wm. H. Sy-
fert Company, and the Wendt-Bristol Company are
passed by me one or more times almost daily in go-
ing to and from my work when in the City. The
Park Street Pharmacy is also familiarly known, and
on one of my frequent routes. Notwithstanding the
advantages thus existing for an understanding of the
evidence, the determination of the vital issues in the

— 167 —

THE COCA-COLA COMPANY

case is not free from embarrassment. The cred-
ibility of witnesses is involved. All are not equally
credible, whether tendered by one side or the other,
nor have all had the same, or equal, or full oppor-
tunities of knowing the matters concerning which they
testified. In some instances interest and ill feeling
—notably in the case of Massey and Mykrantz — were
manifest. The case calls for a critical analysis of
the evidence. The entire record has therefore been
re-examined.

Diverse citizenship exists. The plaintiff corpora-
tion has operated since sometime in 1892. Its busi-
ness, extensively conducted in North America, to a
considerable extent in South America, and in a lim-
ited way in Australia and the Sandwich and Philip-
pine Islands, is large. Its cost of advertising in 1905
was $280,000.00. In each of tM past three years it
has been as much as $1,200,000.00. Its annual sales
in Columbus aggregate 20,000 gallons; in Ohio,
300,000 gallons. The immediate, but not the only pur-
pose of these recitals is that the substantial character
of the jurisdictional averment in the bill is to be
tested, not by the mere immediate pecuniary damage
resulting from the acts of which complaint is made,
but by the value of the business to be protected and
the rights of property which plaintiff seeks to have
recognized and enforced. Bitterman v. L. & N. E. E.,
207 U. S. 205, 225; Texas & Pac. Ey. Co. v. Kute-
man, 54 Fed. Eep. 547, C. C. A. 5 ; Foster, Fed. Pr.,
4th Ed., 90, 98, et seq. The court has jurisdiction.

It was stipulated that " There is no issue made in
this case regarding the validity of the trade-mark
' Coca-Cola. ' ' ' The defense urged, however, that plain-
tiff did not have a right to the use of the name
"Coca-Cola" and may not complain of unfair com-
petition in that it does not come into court with clean
hands, on account of the name being misleading and
deceptive. The weight of authority seems to be that
such a defense need not be affirmatively pleaded. 38
Cyc. 897; 21 Ency. PL & Pr. 763, 764. Neither the

— 168 —

v. FEANK F. MYKRANTZ

evidence nor prior adjudications to which this court
should give heed sustain the defense thus made. See
the discussion in Nashville Syrup Co. v. Coca-Cola
Co., 215 Fed. Rep. 527, C. C. A. 6; U. S. v. 40 Barrels
and 20 Kegs of Coca-Cola, 215 Fed. Rep. 535, 544,
C. C. A. 6; Coca-Cola Co. v. Nashville Syrup Co., 200
Fed. Rep. 153.

Counsel are not agreed as to the rule of evidence
to be satisfied by plaintiff in order to win. The ac-
tion is based essentially upon fraud. Fraud must be
proved. If it appears that the defendant was de-
stroying or attempting to destroy an honest business
by dishonest means, the action must be sustained.
The gravamen of the complaint is a fraudulent pur-
pose on defendant's part, carried into action, to foist
upon the public a spurious article as that of plaintiff's
and thus to deprive the plaintiff of the profits which
it would otherwise receive. Fraud may be inferred
from facts, but they must be such as to warrant the
inference. On account of the character of the action,
the proof must satisfy the court. N. K. Fairbank Co.
v. Windsor, 124 Fed. Rep. 200, 202, C. C. A. 2. The
evidence must clearly preponderate in plaintiff's
favor. Hostetter Co. v. Bower, 74 Fed. Rep. 235. It
must be clear and convincing. U. S. v. Iron and Sil-
ver Min. Co., 128 U. S. 673. The plaintiff is not,
however, required to establish its case beyond a rea-
sonable doubt.

The defendant claims that he regarded Coca-Cola
as deleterious, as a habit-forming drink. The cross-
examination of the witness Wesener went in part to
that point, but against the defendant. The evidence
does not warrant the claim. The ruling was adverse
to a like claim in U. S. v. 40 Barrels and 20 Kegs of
Coca-Cola, 215 Fed. Rep. 535, C. C. A. 6.

At the conclusion of the evidence it was stated from
the bench that the analyses made by plaintiff's chem-
ists would be accepted. Further reflection and a re-
consideration of the evidence of the experts leave
that conclusion undisturbed. The correct analysis of

— 169 —

THE COCA-COLA COMPANY

Coca-Cola is attended with difficulty. Defendant's
counsel concede the test to be "a delicate one."
(Brief p. 48.) The conclusion reached carries no re-
flection on the experts offered by the defendant.
Neither of them had analyzed Coca-Cola prior to his
being brought into the case. The plaintiff's witnesses
had each had a large experience in testing the article
in question and substitute therefor. Caspari was an
intelligent and impressive witness. Wesener and
Fuller obtained from analyses of Coca-Cola the same
results as he did. Fuller was in some degree handi-
capped by his evidence in the Government case
brought at Chattanooga — portions of which he says
were incorrectly abstracted. He states that he has
learned since he then testified and knows that he
erred at that time in certain respects; but the result
would be the same were his evidence wholly disre-
garded. Thurston's tests as regards the determina-
tion of the several ingredients of Coca-Cola could
hardly have been satisfactory to himself. Withrow
was learned and sincere, but was borne down by the
weight of the evidence of men equally learned and
of greatly wider experience in the testing of the ar-
ticle in question. It is not shown or claimed that the
constituents of Coca-Cola are other than those stated
by the plaintiff's experts. It is not shown that the
analyses made by Caspari of the samples sent him
were incorrect. The liquids so sent were not the
plaintiff's product. The defendant's contention that
the trouble between him and Massey arose out of the
refusal of the former to employ Coca-Cola signs for
advertising purposes and his claim that Massey never
accused him of selling a substitute for Coca-Cola,
cannot be accepted. The use of such signs is by
no means universal. If the refusal to use them ordi-
narily provoked a hostility such as this case betrays,
Massey must have had many quarrels on his hands.
Considering the large sales of Coca-Cola, it is im-
probable that a feeling so deep-seated would have
arisen from a source of business, which withholding

— 170 —

v. FRANK F. MYKEANTZ

in some degree profits from the plaintiff, diminished
the profits of the defendant. It must be that Massey
incited his employer to investigate the defendant's
conduct of his business as regards his sales of Coca-
Cola. It was his duty to report to plaintiff his bona-
fide belief, if he had it, in an invasion of its property
rights. On account of his length of service with it,
it must have known his characteristics and degree of
trustworthiness. It can hardly be that it would
hurriedly embark or persist in expensive litigation
to gratify the animosity of a salesman, who is ap-
parently quick of temper, and, when angry, prone to
the use of reprehensible language. It is in evidence
that the defendant also at times employed unseemly
epithets. But whatever may have been the language
used by these parties and whatever may have been
their feeling of mutual ill will is not determinative of
the case and should not distract the mind of counsel
or the court from the real issues. Stutson in his
evidence alludes to his effort as an intermediary
to patch up the differences between Massey and
Mykrantz, but he does not state the cause of such
differences (pp. 562-563). Some three or four years
prior to the trial the defendant ordered Massey from
his store. The latter testifies that he called in
Mykrantz in 1904 and later discovered that he was
diluting his Coca-Cola, that he told him of this and
that he was not selling genuine Coca-Cola as manu-
factured by the plaintiff, that this subject was dis-
cussed two, three or four years, that he repeated his
charge that the article sold by the defendant was not
genuine, and that some three or four years ago his
accusations culminated in Mykrantz ' ordering him out
of his store. Mykrantz testified (p. 641) that Massey
never accused him of selling a substitute for Coca-
Cola. He knew, however, when Harrington, Bar-
thelow and Friend visited his cellar on September
12, 1914, that he was suspected. He says (p. 627)
that he gave a sample to Harrington with the request
that he take it to his chemist, as he would like to have

— 171 —

THE COCA-COLA COMPANY

the matter settled, because he understood the Coca-
Cola Company had sent detectives to his different
stores and he wished by an analysis to stop the mat-
ter forever, as ,it was becoming rather worrisome. In
an affidavit he made oath that when he ordered
Massey out of his store, the latter had called for a
drink of Coca-Cola, and, after testing it and placing
the glass on the counter, said in a loud voice several
times, "This is not Coca-Cola;" that at the same time
he gestured and caused considerable commotion;
that he had been guilty of such conduct at different
prior times within a period of probably a year; that
he was thereby injuring the defendant 's business, and
in consequence he was compelled repeatedly to order
him from the store. He says these things were re-
ported to him by Miss Davis, a clerk; but the fact
remains that he had knowledge of j the accusation. He
corroborates Massey that the break between them was
due to the latter's repeated accusation of the sale of
a spurious article and not on account of a refusal to
display signs. The plaintiff did not act solely on the
representations (if any) of Massey, whatever they
may have been. It acted with deliberation. It em-
ployed detectives, who visited plaintiff's stores in
quest of information in 1913. It later sent Friend in
1914 to ascertain, if possible, the real situation. It
employed chemists to analyze the samples which
Friend claimed he obtained, and not until after these
things were done and the results of its efforts known
was the present suit brought.

Counsel rightfully agree that if the defendant was
engaged in the fraudulent practices attributed to him,
his operations would be conducted secretly. It is
also reasonable that, if thus guilty, he would pur-
chase and dispense some genuine Coca-Cola to disarm
suspicion and render detection more difficult. Coun-
sel for the respective parties apply the rule of
secrecy to the evidence adduced by the other, but, as
it seems to me, neither concedes its full force when
applied to that offered in behalf of his own client.

— 172 —

v. FRANK F. MYKRANTZ

The rule militates against so much of the evidence
of the Pinkerton Detectives as charges that defend-
ant's employes admitted that the defendant made his
own Coca-Cola and that they could not sell it in quan-
tity because they had not the ingredients on hand to
make a new supply. It is possible but not probable
that such statements were made; and yet the detec-
tives were more impressive as witnesses and of a
higher type than are ordinarily men of their occupa-
tion. That the Pinkertons did not buy in quantity
is borne out by the evidence on both sides. The de-
fendant's witnesses say that none of them ever sold
Coca-Cola from the container to be taken from the
store, excepting to Friend and in one or two other
specified instances. They deny that they ever re-
fused or were told to refuse such a request^The de-
tectives were sent for the express purpose of making
such purchases. They say they attempted to buy at
each store and were refused. That they were here
and visited the stores cannot well be doubted. There
are details mentioned, incidentally or otherwise, such
as the date of the opening of the store at Main and
High Streets, of which they could not have had
knowledge had they not been here. That a year later
two samples should have been procured without diffi-
culty from each store also operates against the evi-
dence of the detectives. Their efforts, however,
lacked adroitness and were such as were liable to
meet with defeat, if guilty knowledge was present on
the part of the defendant's employes and they wished
to shield him.

The rule of secrecy also disposes of much of the
evidence offered by the defendant. It is improbable
that, if substitution was going on, it should have been
known to more than one or two of the defendant's
employes; and, as the central store was at No. 23
South High Street, from which Coca-Cola, real or al-
leged, was sent out from time to time to one or more
of the stores, as the case may have been, the person
or persons who knew of the substitution, if made,

— 173 —

THE COCA-COLA COMPANY

would naturally be located at that store. A large por-
tion of the evidence given by defendant's employes
is negative in character and for practical purposes a
negligible quantity; they did not know of any substi-
tutes or adulteration, because they did not have the
opportunity of knowing.

The evidence given by certain numerous witnesses
that what was sold over the counter tasted and looked
like Coca-Cola is not influential. On the cross-exam-
ination they freely admitted that they were not ex-
perts as to its taste or color. All they could say was
that to their knowledge no substitute had been pre-
pared or placed in the containers and that what they
tasted and saw tasted and looked like Coca-Cola.
Whether it was or not, they were not sufficiently ex-
pert to determine. There was ample opportunity to
prepare a substitute without the^r knowledge. Mas-
sey by experiences was by far the best qualified of
any witness that appeared to determine whether the
article sold was the genuine or spurious. It was a
part of his business to know. In the light of the evi-
dence, his judgment as to the spurious character of
the article sold was correct.

It is freely admitted that Friend obtained from
each of the defendant's five stores two samples of
the liquid sold from containers as Coca-Cola. The
happenings as narrated by him. Hirsch and Bigelow
are quite fully corroborated in their essential and to
a considerable extent in their non-essential details
by defendant's employes. It is true that in one in-
stance it is said the purchaser requested the addition
of simple syrup to the article purchased and that such
addition was made, but this is not sustained by the
weight of the evidence. The very purpose of the pur-
chase was to get Coca-Cola just as it came from the
container. But were it otherwise, it does not appear
that the result of its analysis would have been dif-
ferent. Friend went about his investigation in a
thorough, methodical and business-like way, well cal-
culated to be effective. He and his associates have

— 174 —

v. FEANK F. MYKEANTZ

told of their care to obtain and preserve samples in
clean bottles, of their manner of sealing and labeling
them, of the caution exercised to prevent tampering
with them and of their final shipment in their sealed
condition to Caspari. His evidence, in so far as it
touches the condition of the bottles when they were
received by him, corroborates them. Friend testified
freely and with much detail. He impressed me as a
truthful witness. Testing his statements by the dis-
closures of defendant's witnesses, in so far as he
was brought in contact with them, confirms and com-
pels such belief. Having testified truthfully as to
how he procured the samples and as to the incidents
occurring when some of them were obtained, why
should his evidence, or that of Hirsch and Bigelow,
not be accepted as to the handling and final disposi-
tion of the samples after their procurement? No one
has said that he or any one else substituted any de-
coction for them, or adulterated, or in any manner
tampered with them, or that any one of them pos-
sessed sufficient knowledge to prepare a substitute, or
to add a substance which would destroy "Merchan-
dise No. 5." There is an entire absence of evidence,
direct or circumstantial, on all these points. If he
and his associates, or any of them, deliberately
switched some substitute for the samples, or added
or subtracted some ingredient, the offending party
or parties were guilty of most despicably fraudulent
conduct for no other purpose than to injure the de-
fendant. Such baseness cannot be implied in the ab-
sence of evidence upon that point, because fraud must
be proved, not presumed. That his helpers were
drawn from the class of the employed cannot be held
against them. Were it otherwise, the same rule would
play havoc with the witnesses for the defendant.
Moreover, it is yet to be shown that the employed,
the laboring class, the common people, are not as
truthful as others. No substance is even suggested
which could have been substituted, for the samples or
which could have been placed in them, whose analysis

— 175 —

THE COCA-COLA COMPANY

would yield the result obtained by Caspari. The evi-
dence of Friend and his helpers must be accepted as
true. Whatever contradictions and variations are
found are not sufficient to impair its force. From
this it follows that the defendant was selling another
as Coca-Cola.

The conclusion that the defendant was guilty of
palming off as Coca-Cola some other article does not
rest wholly on Massey's ability in tasting or the evi-
dence of Friend and his assistants. The defendant
caused various drinks to be prepared in his cellar.
Fismer was one of his employes that mixed or pre-
pared them. Fismer was in a position to know what
was going on. He may have been discharged. He
may havo felt hostile about it. But, when he testi-
fied, he attempted, in a lame and mistaken way, it is
true, to shield his former master. His evidence is
so evasive as to defeat its purpose. To gather its full
import it must be taken as a whole — every question
and answer just as the one was propounded and the
other given. Had he freely confessed his guilty par-
ticipation in the preparation of a substitute, using an
extract or other ingredient whose resultant would
simulate Coca-Cola, and had he expressly charged
that the defendant directed such preparation and
caused the product to be sold, his evidence would
have been scarcely less hurtful to the defendant than
it was in the condition in which he left it. His will-
ingness to protect the defendant may have been due
to a fear of discrimination against himself on account
of his having disclosed the secrets of his former em-
ployer's business, or on account of anger due to what
he deemed a betrayal of his confidence, but his de-
meanor and evidence convince me that he admitted
to others his part in fraudulent practices in defend-
ant's store.

Doubt was entertained when the evidence was com-
ing in as to the competency of that offered as to the
extent of sales of Coca-Cola by other drug stores
and other places of business. A determination of the

— 176 —

v. FRANK P. MYKRANTZ

admissibility of such evidence and of the weight to
be given to it is not, in my judgment, essential to the
decision of the case. In view, however, of counsel's
extended discussion of its competency and its hear-
ing, if the ruling on its admissibility be favorable to
the plaintiff, it merits the court's consideration. A
wide latitude is given to the admission of evidence
in cases of fraud, for the reason that fraud is
usually of such a nature that it is impossible to prove
it by direct and positive evidence. Elliot, Ev., Sec.
814; Butler v. Watkins, 13 Wall. 456, 464. The lib-
erality which prevails in the admission of evidence
is thus stated in Holmes v. Goldsmith, 147 U. S. 150,
164:

"As has been frequently said, great latitude is
allowed in the reception of circumstantial evi-
dence, the aid of which is constantly required,
and, therefore, where direct evidence of the fact
is wanting, the more the jury can see of the sur-
rounding facts and circumstances, the more cor-
rect their judgment is likely to be. The com-
petency of a collateral fact to be used as the
basis of legitimate argument is not to be deter-
mined by the conclusiveness of the inferences it
may afford in reference to the litigation fact. It
is enough if these may tend, even in a slight de-
gree, to elucidate the inquiry, or to assist, though
remotely, to a determination probably founded
in truth. Stevenson v. Stewart, 11 Pa. St. 307.
The modern tendency, both of legislation and of
the decision of courts, is to give as wide a scope
as possible to the investigation of facts."
Judge Cooley, in Stewart v. People, 23 Mich. 63,
75, held that the proper test for the admissibility of
evidence ought to be whether it ha-s a tendency to ef-
fect belief in the mind of a reasonably cautious per-
son, who should receive and weigh it with judicial
fairness. This accords with the Ohio rule that the
spirit of the law of evidence permits a resort to every
reasonable source of information upon a disputed

— 177 —

THE COCA-COLA COMPANY

question of fact arising in a case. Bell v. Brewster,
44 Ohio St. 690, 697. In the same case, at pp. 699,
700, Phillips on Evidence is quoted to the point that
it may be laid down as a first principle that exclu-
sion is generally an evil, and admission generally
safe and wise, and that it is certain that the adminis-
tration of justice in our courts has suffered, not from
too free an admission of evidence, but from too rigid
exclusion. Evidence of collateral matters is admis-
sible which is capable of affording a reasonable
presumption or inference as to the principal mat-
ter or fact in dispute. Brewing Co. v. Bauer, 50 Ohio
St. 560, 565; Thomson, Ohio Trial Ev., Sec. 163, cit-
ing Insurance Co. v. Tobin, 32 Ohio St., 77, 91. The
transaction under investigation is the sale of Coca-
Cola, real or spurious, by lli<i defendant. The pur-
pose of the plaintiff is to show tjaat the purchases of
the genuine article by other retail dealers under con-
ditions and circumstances substantially the same as
those surrounding the defendant, were so greatly in
excess of those made by the defendant as to warrant
the inference that to supply the demand at his places
of business he dispensed a substituted article. If the
evidence is competent, it is not necessary that it
should be shown that the conditions and circum-
stances were precisely the same. Similarity or equiv-
alency in that respect is sufficient. It will also be suf-
ficient should the conditions and circumstances sur-
rounding the defendant be more favorable to large
sales than those which surround competitors whose
sales or purchases, as the case may be, are brought
into comparison with his. The conditions which pro-
duced given results to the defendant's competitors, it
is contended, should under similar or equivalent con-
ditions have produced the same results for the de-
fendant. In the case of Bry Block Mercantile Co. v.
Columbia Portrait Co., 219 Fed. Eep. 710, C. C. A. 6,
it was averred that the plaintiff fraudulently repre-
sented to the defendant that three other dealers in
other and distant cities (Birmingham, Ala., New

— 178 —

v. FRANK F. MYKRANTZ

Orleans, La., and San Antonio, Texas) had used the
advertising scheme in question and had found that
the profits on frames sold for the medallions given
away would repay all cost of its operation. There
was no averment that the conditions existing in any
of such cities were similar to those surrounding the
defendant in Memphis. Nothing was alleged as to
the amount of effort expended or ability displayed
by the respective merchants, or any of them, in such
distant cities to make the scheme successful, or which
the defendant would have to exhibit in Memphis to
obtain the same results. The trial court sustained a
demurrer to the answer. The Circuit Court of Ap-
peals in approving such action said:

"While the question is not free from doubt,
we think it beyond the safe limits of the estab-
lished rule to allow a rescission for fraud to be
predicated upon such representations made in the
surroundings shown without dispute by this
record. ' '

It did not however, rule that a demurrer should be
sustained or evidence excluded regardless of the
facts that might be pleaded. In that case the defend-
ant, after he ceased to purchase of the plaintiff,
bought medallions from another manufacturer. He
offered to prove that the medallions so purchased
were the precise equivalent of those made by plain-
tiff and that he operated his store and advertising
scheme with such substituted medallions exactly as
contemplated by his contract with the plaintiff. It
was held error to reject such highly persuasive evi-
dence, the court saying that the equivalency of the
article and of the conditions is of the utmost impor-
tance as showing the value of the comparison and that
without proving such equivalency the evidence would
be of little force. In the instant case the plaintiff
seeks to prove that the defendant sold a given amount
of a well known and popular article, staple in its
nature and sold everywhere in the same form, which
was precisely the same as that sold by others in the

— 170 —

THE COCA-COLA COMPANY

same city and in the same localities in such city, and
would have the court infer that, on account of claimed
similarity of conditions and circumstances, the dis-
crepancy in the amount of the genuine article sold by
the defendant, as compared with that sold by his
competitors, is such that the defendant could not have
supplied his trade therewith and consequently must
have resorted to a substitute. The teachings of the
Bry Block Mercantile Company case, and the author-
ities above cited touching evidence of collateral mat-
ters, do not, in view of the facts disclosed, render in-
admissible the evidence under consideration, offered
by the plaintiff, it was properly received and has con-
siderable probative value.

The volume of business done at any given stand
and the success or failure of its owner are deter-
mined not merely by the desirability or undesirability
of the location, but also by the personality, effort and
ability of the individual conducting the business. If
the personal equation be considered, the defendant
does not suffer by comparison with others. He has
been engaged in the drug business for thirty years.
His first experience was at Ashland, Ohio. He then
went to Brooklyn, New York, where he remained
about thirteen years. He says the store he conducted
there ' ' was considered one of the largest in the city. ' '
In October, 1900, he purchased the Herbst Drug Store
at No. 13 South High Street, fronting on Capital
Square and some three or four doors north of his
present principal place of business. The location se-
lected was good. Following the erection of the Har-
rison building, he manifested his good judgment by
removing from the inner store room at No. 13 South
High to the corner and better room at No. 23 South
High Street, where he has since maintained his prin-
cipal store. This room also fronts the State House
and is the first room north of the Neil House (a well
known hostelry), from which it is separated by an
alley. It has not only the usual front but a side
window westward along the alley. The opportunity

— 180 —

v. FRANK F. MYKRANTZ

for a window display of goods is much better than in
his former store. The location is most desirable. He
has extended his business until he was operating at
the time of the trial six drug stores — a fact which
suggests enterprise, effort, and executive ability.
The records show that he has a considerable number
of employes. His selection of localities has been
happy and displays good judgment. His store at the
southeast corner of High and Main Streets is the cor-
ner room in the Great Southern Hotel Building. Car
lines passing it in front run north and south ; another
line running east and west turns into High Street at
the intersection of these two streets. The store at
the corner of Miller and Main, and that near the cor-
ner of Mt. Vernon Avenue and Twentieth street (be-
ing either the second or third door from Twentieth
street), are on important streets reaching into the
east end of the city and are respectively in commu-
nities which have developed into business sections.
The store at the corner of Poplar Avenue and North
High Street is north of the depot on a north and south
car line and a square north of Goodale Street, on
which are car lines running both east and west. The
location is not, however, so good as that of Foeller,
which is in the same square and the second door from
the northwest corner of Goodale and High Streets.
Transfers from one car to another are frequent at
the intersection of those streets. North High Street
is devoted to business for a considerable distance
both north and south of the above-mentioned stores.
The defendant's business has been such that his aver-
age purchases from the drug house of The Kauffman-
Lattimer Company, in 1913, were $3,500 per month;
in 1914 his average monthly purchases from that
house were $7,000 and his aggregate monthly pur-
chases for the same period from $10,000 to $12,000,
reaching $14,000 in December. This bespeaks a grow-
ing business. He is not an amateur, but an expe-
rienced aggressive business man, who has established

— 181 —

THE COCA-COLA COMPANY

a chain of stores in growing communities of a grow-
ing city.

An affidavit of Massey was filed touching the
amount of Coca-Cola purchased by other druggists in
Columbus. In response to that a verified affidavit of
the defendant was submitted, in which he states:
"In answer to said statements affiant says that the
amount of Coca-Cola purchased by him in each of
the years that lie has been engaged in the drug busi-
ness in the city of Columbus has been such quantities
as would ordinarily be used by soda fountains where
said Coca-Cola was not especially advertised or
brought to the attention of customers of such foun-
tain." He was not then unwilling to enter upon a
comparison of his stores with others.

The defendant's principal store at No. 23 South
High Street has been continuously in- operation at
that place since 1904. His Mt. Vernon Avenue store
was opened in November, 1912, but he states that the
soda fountain was not placed or fully placed in oper-
ation until the spring of 1913. The Main and High
Street store began business July 12, 1913; that on
Main Street and Miller Avenue October 7, of the same
year. These are the stores for which purchases were
made in 1913, for the respective periods for which
they were in operation. In the first week of April,
1914, the store at the corner of Poplar Avenue and
High Street was opened. None of his stores have ever
been discontinued.

The defendant states that he did not advertise or
push the sale of Coca-Cola and that he believed it
to be a habit-forming drink. That he did not main-
tain Coca-Cola signs on his premises, although he
displayed advertisements of other goods sold by him,
is borne out by the record. There is no evidence that
he or his helpers or salesmen suggested to customers
the purchase of Coca-Cola. He says he instructed his
clerks not to sell it, without some restraint, to chil-
dren. It may be conceded that he did not sell as
much of the article as if he had advertised or pressed

— 182 —

v. FRANK F. MYKRANTZ

its sale. It is urged that his defense of a belief
that Coca-Cola is "habit-forming" is an after-thought,
as it was not put forth until his third affidavit was
filed. His failure sooner to interpose such defense
may have been an oversight, but it suggests that his
fear of the beverage's injurious effects was not deeply
imbedded in his mind, or regarded as an important
factor, or a deterrent from reaping the profits accru-
ing from its sale. He sold Coca-Cola. There was
confessedly a demand for it at every store he had,
and it was known that it could be procured at any
of them. Its sale was never discontinued on account of
the defendant's belief of its harmful effects. No clerk
has testified to any direction received from the de-
fendant which would restrict its sale, or to any warn-
ing to be given to any purchaser, real or prospective,
young or old, or to any suggestion made at any time
that a purchaser buy some other drink. His belief
as to its being a habit-forming substance does not ap-
pear ever to have been communicated to the public
and none of his employes have alluded to it as such.
There is no evidence that the request of any pur-
chaser for Coca-Cola was ever refused, unless it be
in the case of the Pinkerton detectives, and as to
whether sales to them in bulk were refused need not
be determined, because the case may be decided with-
out so doing. The display of Coca-Cola signs is not
universal with the dispensers of that article. It is
not shown that all of the Columbus retailers with
whose purchases plaintiff seeks to compare those of
the defendant, exhibit signs in their places of busi-
ness. Five of his competitors named in the record
displayed signs. The record is silent as to the others.
It would seem to have been to the interest of the de-
fendant to have shown that such others also adver-
tised the beverage had he been able to do so. The ar-
ticle is extensively advertised, wholly independent of
the efforts of any individual retailer. Its use in Co-
lumbus is large. It is not seriously controverted, if
controverted at all, that it is the best known and most

— 183 —

THE COCA-COLA COMPANY

frequently demanded of all the soft drinks sold in the
city. Allusion has already been made to the quantity
sold, and see affidavits of May, Hische, Foeller and Eb-
right. The same necessity for personally advertising
it to effect sales does not exist so for less known
articles. The defendant must have had quite a soda
fountain trade at his central store, for one of his
clerks, Swift, says a "lot of root beer" was sold there,
and there is much evidence of the preparation and sale
when prepared, of other soft drinks at the counter by
girl attendants and other employes.

The evidence of the defendant's employes unex-
plained would leave the impression that purchases of
Coca-Cola in kegs was frequent and consequently in
large quantities. Dates, however, were not fixed. It
must be different witnesses testified in some instances
to the same purchases. The defendant admits that all
his buying was from The Kauffman-Lattimer Com-
pany except fifteen gallons from the Buckeye Drug
Company, from twrenty to twenty-five gallons, as esti-
mated by him, of the Morehouse-Martens Company,
and a certain amount bought for his Lakeside store
and shipped from that place to him here. There is
evidence of some transfers of Coca-Cola from the
central store to one of his others. There is a neces-
sary inference that like transfers were made to others.
I have made no calculation as to amounts. The
amount must have been considerable, if regard be
had to the small deliveries by the wholesale house to
his outlying stores and the large deliveries by such
house to other drug stores in the same localities.
Counsel are not agreed as to the extent of Coca-Cola
purchased. For the year 1913 plaintiff fixes it at 70
gallons, the defendant at 90 gallons. For the year
1914 plaintiff makes it 150 gallons, the defendant 180
gallons. Which is correct is not highly important,
certainly not conclusive. The ultimate result must be
the same, whichever set of figures is adopted.

The Perfecto Cigar Store's place of business is in
the same block and but three or four doors north of

— 184 —

v. FRANK P. MYKBANTZ

the defendant's store at No. 23 South High Street. It
is an inside room, less attractive and affording less
opportunity for display than the defendant's. It is
hardly to be presumed that women and children on
account of its extensive cigar features, would resort
to it as much as to the more attractive drug store.
That store purchased 100 gallons of Coca-Cola in

1913, in the same time that the defendant purchased
90 gallons (if his figures be correct) for all of his
stores then in operation — his central store having an
established business and being in operation all the
time, and his other three respective stores being open
a part of the year, as heretofore stated. In 1914 the
purchases of the Perfecto Cigar Store were 1464 gal-
lons and of the defendant for his five stores 150 to
180 gallons, according to the system of calculation
adopted. We have seen that the defendant's store at
No. 23 South High Street is north of and distant from
the Neil House an alley's width. The Wendt-Bristol
Company's store also fronts Capital Square and is
at No. 47 South High Street in the south part of the
Neil House block and occupies an inside room. For
display purposes and as to location it is at a disad-
vantage when compared with the defendant as re-
gards his main store. Conceding that the Wendt-
Bristol Company displays Coca-Cola signs, the stores
are so closely situated and the general conditions, hav-
ing regard to all the circumstances, are so similar that
the consumption of Coca-Cola in one ought not to
vary greatly from that of the other. Nevertheless,
as against the quantity bought by the defendant for
all of his stores in the respective years of 1913 and

1914, the Wendt-Bristol Company purchased for its
single store 168 gallons in 1913 and 241 gallons in
1914. Such difference cannot be rationally explained
on any or all of the defensive theories the defendant
has advanced. The Perfecto Cigar Store and the
Wendt-Bristol Company have been selected on account
of their close proximity to the defendant's main store
and the similarity of surroundings -- the advantages

— 185 —

THE COCA-COLA COMPANY

as to the surroundings being favorable to the
defendant. Additional significance attaches to the
above figures if notice be taken of the purchases made
by the stores on Mt. Vernon Avenue and Main Street
(those of Eitel and Fobes) in the vicinity of those
owned by the defendant in the same locality as the
respective stores. Eitel 's store is on the corner of
two streets and more central as regards the local
business community than defendant's Mt. Vernon
Avenue store, and, other things being equal, ought, I
think to have larger sales. Defendant's store at Main
Street and Miller Avenue is in an attractive corner
room. That of Fobes is on the opposite side of the
street and two doors east in an inner room. It is not
so desirable as a corner room or so attractive as
plaintiff's, but is on the side of the street which has
the greater number of business hpuses. About one
and a quarter squares north of the Neil House is the
Busy Bee Candy Kitchen; two squares north is Hat-
ton Bros.; three and a half squares north is the May
Drug Company, in the Hotel Chittenden block. The
Hatton Bros, do some advertising, but in comparing
their store with the defendant's single store it should
be borne in mind that it is more nearly in the center
of retail business and is apparently conceded to have
the best retail drug business in the city. It is diffi-
cult to believe that the defendant in 1914 should have-
had a demand for but 150 to 180 gallons of Coca-Cola
for his five stores, one of which was across the alley
from the Neil House, and another in the most desir-
able room in the Great Southern Hotel Building,
when in the same period the one store of the May
Drug Company in the Chittenden Hotel block re-
quired 336 gallons for its trade, the Foeller store 160
gallons, the Eitel store 12H gallons and the Fobes
store 100 gallons. There are 165 retailers of Coca-
Cola in Columbus. The average number of unbottled
gallons of Coca-Cola purchased per store in 1914 was
42.4. On that basis, the defendant's stores should
have consumed 212 gallons. It is not claimed that

— 180 —

v. FRANK F. MYKBANTZ

he purchased or used more than 180 gallons. The sig-
nificance of the comparison lies in the fact that the
average of 42.4 gallons per store results from the in-
clusion in the aggregate number of stores of not only
these in desirable locations, but also all of the smaller
stores undesirably situated and in outlying districts.
Sufficient appears to indicate that the quantity of
genuine Coca-Cola consumed at the defendant's
counters in 1914 was abnormally low. The inference
reasonably follows that his sales of what was dis-
pensed as Coca-Cola exceeded his sales of the genuine
article.

There is significance in the fact that defendant pur-
chased from the wholesaler only in five and ten gal-
lon kegs, excepting in case of the supply bought for
his Lakeside summer store. "Why should he have
bought by the barrel for that one store, which was
open for a short period only each year, and not
bought in like manner for his several Columbus
stores, which were operated throughout the entire
year? Cave says (p. 434) that the supply for the
Main and Miller store came from No. 23 South High
Street. From the facts disclosed, there must have
been transfers to other of the defendant's stores from
the same place; and yet the supply at his main store
was limited to one keg, excepting, according to Mor-
rison (p. 502) when the shipment from Lakeside came
in. Morrison (p. 501) did practically all the buying
for the main store, excepting what was done by the
defendant himself. Myron Kauffman says (p. 472)
that the Coca-Cola that came to No. 23 South High
Street, when he worked there, came one keg at a time.
The demand on a single keg must have been large.
The operation of five or six drug stores, for such
finally became the number, is quite an enterprise.
Was it managed in a hand to mouth manner by an
aggressive business man! His experience with that
purchased for the Lakeside store shows that Coca-
Cola properly may be preserved for a long time in a
condition fit for use. The price per gallon for a five-

— 187 —

THP] COCA-COLA COMPANY

gallon keg was $1.75; for a ten-gallon keg, $1.65; for
a barrel, $1.50. The price on his small purchases was
from 10% to 16|% higher than what it would have
been by the barrel. He says he obtained a discount
on his small purchases. He does not say it would
not have been given on large ones. Large purchases
generally secure better terms than small ones. Why
was Coca-Cola bought by the keg and Red Rock
Syrup on different occasions by the barrel! It is true
he says he used such syrup in preparing four differ-
ent beverages, but the chemist, Wesener, directly (pp.
860, 861) and Caspar! indirectly (p. 805) refute a use
of it so extensive.

Defendant says that Harrington asked him for a
sample (pp. 626, 6:27). Later he testified that he vol-
untarily gave Harrington a sample without his re-
questing it. It was drawn from the container at the
fountain. Harrington states that he not only asked
for a sample, but also asked that it be from the bar-
rel in the cellar, and was told that it was taken from
it, which barrel, according to the defendant, con-
tained Red Rock Syrup. The conclusion, it would
seem, must be that Harrington made the request
which he states. Defendant did not deny that he said
the sample furnished by him came from the barrel
which, he says, was not opened until two weeks later.
It is not favorable to the defendant that Harrington
was permitted to depart in the mistaken belief that
the sample given him for analysis was from a given
source, when it in fact was from another.

Other matters discussed have been considered, but
to review them would, without changing the result,
prolong an opinion much lengthier than originally
contemplated. The plaintiff has sustained the burden
of proof which the law imposes to establish unfair
competition. Let a decree be taken in its favor.

Candler, Thomson & Hirsch, Atlanta, Georgia.
Booth, Keating, Peters & Pomerene, Columbus,
Ohio, for complainant.

— 188 —

v. FRANK F. MYKRANTZ

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF OHIO,

EASTERN DIVISION

THE COCA-COLA COM-
PANY,

Complainant,

v.

No. 34.
FINDING, JUDGMENT

FRANK F. MYKRANTZ, AND DECKEE-

Defendant.

This day this cause came on to be heard and was
submitted to the court on the pleadings, exhibits,
testimony and arguments of counsel; on considera-
tion whereof the court finds the issues in this case in
favor of the complainant, The Coca-Cola Company,
and against the defendant, Frank F. Mykrantz, and
that the complainant is entitled to the relief prayed
for in its Bill o'f Complaint. It is therefore ordered,
adjudged and decreed by the court that the defend-
ant, Frank F. Mykrantz, his servants, agents and em-
ployes, and each of them, be, and they are hereby
perpetually restrained and enjoined from doing all or
any of the following acts :

1. From in any manner infringing upon the trade
rights of the complainant, The Coca-Cola Company,
by selling or delivering, in response to requests or
orders for Coca-Cola, any beverage other than that
made from the Coca-Cola syrup manufactured by the
complainant, The Coca-Cola Company, and from sub-
stituting therefor any other syrup whatsoever.

2. From using any name, applied to any drink, so
similar to the name " Coca-Cola " as to cause deceit
or deception.

3. From marketing, selling or offering for sale as
Coca-Cola a syrup, whether diluted or not, of the
identical color of the product known as Coca-Cola,
manufactured and sold by the complainant, The

— 189 —

THE COCA-COLA COMPANY

Coca-Cola Company, and from marketing, selling or
offering for sale, as Coca-Cola, any product having
the peculiar and distinctive color, appearance and
taste of said product of the complainant, or having
such approximation thereto, in color, appearance and
taste, or otherwise, as may tend to deceive the public,
and from marketing, selling or offering for sale any
substitute for said genuine product of the complainant.
The Court further finds that the complainant, The
Coca-Cola Company, by reason of the wrongful acts
complained of in the Bill of Complaint filed herein, has
been damaged in the sum of Five Dollars ($5.00). It
is therefore considered, ordered and adjudged by the
court that the complainant, The Coca-Cola Company,
recover of the defendant, Frank F. Mykrantz, the said
sum of Five Dollars as damages and compensation,
together with its costs herein exj^Midcd taxed at $— — .

THE UNITED STATES OF AMERICA, \
SOUTHERN DISTRICT OF OHIO, >ss.

EASTERN DIVISION. )

I, B. E. DILLEY, Clerk of the District Court of the
United States within and for the District and Division
aforesaid, do hereby certify that the foregoing is a
true and correct copy of the original Finding, Judg-
ment and Decree, entered June 24, 1915, as the same
appears on file and of record in the office of the Clerk
of said Court, in the therein entitled cause.

In Testimony Whereof, I have hereunto subscribed
my name and affixed the seal of said Court, in the
City of Columbus, Ohio, this 22nd day of August,
A. D. 1922.

(Sd) B. E. DILLEY, Clerk.
(By) C. P. WHITE, JR., Deputy.

— 190 —

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE SOUTHERN

DISTRICT OF OHIO

WESTERN DIVISION

249 FEDERAL 763

MARCH 19, 1918

THE COCA-COLA COMPANY,

v.
BENJAMIN DUBERSTEIN, et al.

MATTHEWS & MATTHEWS, Dayton, Ohio,
HAROLD HIRSCH, Atlanta, Ga.,

FRANK P. REED and EDWARD S. ROGERS, Chicago, 111.,
For Complainant.

DALE & KUSWORM, Dayton, Ohio,
For Defendant.

— 191

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF OHIO,

WESTERN DIVISION

249 FED. 763

MARCH 19, 1918

THE COCA-COLA COMPANY,

v.
BENJAMIN DUBER8TEIN, et cd.

1. TRADE-MARKS AND TRADE-NAMES—UNFAIR COM-
PETITION—WHAT CONSTITUTES.

Where complainant had a registered trade-mark in the word
"Coca-Cola," and had built up a large trade in that popular soft
drink, defendant's sale of a competing soft drink under the name of
"Coca and Cola," although his product, unlike that of complainant,
contained no trace of the coca shrub or cola nuts, must be deemed
"unfair competition," and an infringement of complainant's
trade-mark, as defendant imitated the size and shape of the bot-
tles in which complainant sold its product, and the word "and"
between the words "Coca" and "Cola" was in such small type
that purchasers might well deem they were obtaining complain-
ant's product.

2. TRADE-MARKS AND TRADE-NAMES—UNFAIR COM-
PETITION—INFRINGEMENT OF TRADE-MARK.

Where, during the pendency of a suit by complainant, which
had valid trade-mark in the word "Coca-Cola," and had built up
a large business in the sale of that drink, to enjoin defendants
from selling an imitative drink under the label "Coca and Cola,"
defendant's charge of the label of his drink to "El-Cola" was a
mere evasion, and sale thereunder was an infringement of com-
plainant's trade-mark, which under the circumstances amounted to
a contempt of court.

— 192 —

v. BENJAMIN DUBERSTEIN, et al.

3. TRADE-MARKS AND TRADE-NAMES — INFRINGE-
MENT—LABELS—DEFENSE.

Where, after complainant sued for infringement of its trade-
mark, defendant with a paper label covered the infringing name
blown in the bottles in which it sold its soft drink, that fact fur-
nishes no protection, as the paper labels were likely to become
detached, the bottles being in contact with ice and water while
\v;iiting for use.

In Equity. Bill by The Coca-Cola Company against
Benjamin Duberstein, doing business as the Day-
ton Mineral Water Company, and others. Decree
for complainant, granting an injunction and an
accounting, and defendant Duberstein found
guilty of contempt.

Matthews & Matthews, of Dayton, Ohio, Harold
Hirsch, of Atlanta, Ga., and Frank F. Reed and Ed-
ward S. Rogers, both of Chicago, 111., for complainant.

Dale & Kusworm, of Dayton, Ohio, for defendant
Duberstein.

HOLLISTEK, District Judge:

(1) Beginning in 1886, complainant's predeces-
sors had built up a large business in a syrup in
which there was an infusion of an extract of coca
shrub and of cola nuts; the latter made after, it
is said, the cocaine is extracted from them.

The syrup is the basis of a non-intoxicating bever-
age made by combining it with carbonated water.
Since 1892, the complainant has been the exclusive
owner and proprietor of the business. The product
was named " Coca-Cola " at the beginning, and the
beverage has been known under that name for more
than thirty years. By the expenditure of millions of
dollars in advertising it has become well known
throughout the land. The name means, and is under-
stood by the public to mean, complainant's product.
The name was registered in 1893 in the Patent Office,
and again in 1895, in pursuance of the act of

— 193 —

THE COCA-COLA COMPANY

Congress of that year, was registered. The bottles in
which it is sold are of uniform size and appearance,
with the name " Coca-Cola " blown in them, and the
caps of the bottles bear the trade-mark.

The defendant Duberstein, a bottler of soft drinks
at Dayton, Ohio, under the name of Dayton Mineral
Water Company, bottles a product purchased by him
from one John D. Fletcher, who called his product
"John D. Fletcher's Carbonated Syrup, a Genuine
Coca and Cola Flavor." He was the president of the
Nashville Syrup Company, enjoined from making and
selling "Fletcher's Coca-Cola." 215 Fed. 527, 132 C. C.
A. 39 (C. C. A. 6). The bottles in which Duberstein
sells the product to the other defendants, saloon keep-
ers, etc., at Dayton and vicinity, are approximately
of the same size as Coca-Cola bottles, and in them is
blown the words "Coca and Coin." The "and" is in
small type, and the "Coca" "Cola" in script, imitat-
ing the script of the genuine Coca-Cola trade-mark.
The defendant Coshocton Glass Company is the maker
of bottles for Duberstein.

The validity of complainant's trade-mark as the ex-
clusive property of complainant, has been established
in a number of cases elsewhere and in this circuit.
Coca-Cola Co. v. Nashville Syrup Co. (D. C.) 200
Fed. 153; 215 Fed. 527, 132 C. C. A. 39 (C. C. A. 6).
Defendant's product is colored to an exact imitation
of the color of complainant's by the use of caramel,
which serves no other purpose. The cap on defend-
ant's bottles contains the name "Coca and Cola" in
red, with other descriptions indicating that the con-
tents is a flavor of coca and cola. There is no trace
of the coca shrub or cola nuts or coca leaves in it. The
testimony shows conclusively that it was intended to
deceive the consuming public, and in many proved
instances did deceive; but, aside from this, the ap-
pearance, coloring, size, caps, the delivery slips, the
name "Coca and Cola" blown in the bottle, make
the product on its face a fraud on the complainant
and on the public. The complainant is entitled to an

— 194 —

v. BENJAMIN DUBERSTEIN, et al.

injunction against all the defendants in accordance
with its prayer, and for an accounting.

(2, 3) During the progress of the case, Duberstein
sold his product as "El-Cola" in the same bottles in
which he had been selling "Coca and Cola" covering
the words "Coca and Cola," blown thereon, by a dia-
mond-shaped label pasted thereover, on which was
printed in large type in white on a diamond-shaped
black background, "El-Cola." By pasting on the
label, Duberstein would change his "Coca and Cola"
product to "El-Cola," and thereby escape the con-
demnation he evidently expected "Coca and Cola"
would receive in this case. Thereby he is charged by
complainant with contempt of court.

This is illustrative of a strange lack of perception
on the part of defendant Duberstein, and by so many,
as the decisions show, in cases of infringement of
trade-mark and unfair competition, that the courts
deal with matters of substance rather than of form,
and that the odor of fraud is difficult to remove. This
case reeks with it. Why does the defendant use the
"Cola" at all? And why color its product as it does?
Any why adopt the same size of bottles! The only
purpose is to appropriate a part of the value of com-
plainant's trade-mark and good will.

Pasting the label "El-Cola," affords no protection
to defendant's illegal act. These bottles are in con-
tact with ice and water all the time while waiting for
use. Aside from the instances proved of the labels
having become detached, their liability to become de-
tached is so great as not to afford protection, even if
their permanency would be a protection. Prest-0-
Lite Co. v. Davis. (D. C.) 209 Fed. 917, affirmed 215
Fed. 349, 131 C. C. A. 491 (C. C. A. 6); Prest-0-Lite
Co. v. Bogen (D. C.) 209 Fed. 917; Prest-0-Lite Co.
v. Avery Lighting Co. (C. C.) 161 Fed. 648; Evans v.
Von Laer (C. C.) 32 Fed. 153; Wood v. Burgess (1890)
59 Law Jour. N. S. 11; Thwaites & Co. v. McEvilly,
20 Rep. Pat. Gas. 663, affirmed 21 Rep. Pat. Cas. 397,
401, 402.

— 195 —

THE COCA-COLA COMPANY

It is also proved that defendant's " El-Cola " is
palmed off by dealers as ' ' Coca-Cola. ' ' But the label,
if permanent, affords no protection. ''El-Cola" is in
itself an infringement of complainant's trade-mark
"Coca-Cola." Complainant has cited more than 25
applicable decisions.

In addition to the injunction, plaintiff may take an
order finding Duberstein guilty of contempt, the pun-
ishment to be determined when the formal order is
taken.

— 196 —

v. BENJAMIN DUBERSTEIN, et al.

THE UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF OHIO,

WESTERN DIVISION

No. 13— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

BENJ. DUBERSTEIN, doing business as DAYTON
MINERAL WATER COMPANY, et al., Defendants.

DECEEE.

Complainant's motion for a preliminary injunction
coming on to be heard upon the verified Bill of Com-
plaint, affidavits and exhibits, and having been argued
by counsel;

It is ordered, that during the pendency of this suit
and the further order of the Court the defendants,
to wit: Benj. Duber stein, doing business as Dayton
Mineral Water Company, Martin Hornung , George
Soto, Peter Kolleda, Roy Snyder, E. B. Faust, doing
business as Faust Grocery Store, Joseph F. Waltz,
C. J. Stumpf and C. A. Stumpf, doing business as
Stumpf Brothers, A. L. Hart and W. F. Hart, doing
business as A. L. Hart & Son and their officers, agents,
servants, employees, attorneys, licensees and assigns
and all holding by, through or under them, and each
of them, be, and they hereby are enjoined and re-
strained from using in connection with the manufac-
ture, advertisement, offering for sale or sale of any
product not being the genuine product of the com-
plainant, the name "Coca-Cola," or any like name,

— 197 —

THE COCA-COLA COMPANY

1 1 Coca and Cola" or any like words or names and
further from doing any act or thing or using any
name, device, artifice or contrivance which may be
calculated or likely to induce the belief that an article
not the complainant's is the complainant's.

That the defendants during the pendency of this
suit and until the further order of the Court, be and
they hereby are, enjoined and restrained from sell-
ing as Coca-Cola or in response to demands for Coca-
Cola any product not complainant's.

That certified copies of this order be served upon
the defendants herein named forthwith.

Dated, June llth, 1917.

HOLLISTER, District Judge.

To the above rulings, orders and decrees the de-
fendant Benjamin Duber stein, excepts.

0. K. as to form.

Dale & Kusworm, for defendant Benj. Duberstein.

Approved.
Matthews c§ Matthews, solicitors for complainant.

THE UNITED STATES OF AMERICA,
SOUTHERN DISTRICT OF OHIO, )> ss.
WESTERN DIVISION.

1, B. E. Dilley, Clerk of the District Court of the
United States within and for the District and Divi-
sion aforesaid, do hereby certify that the foregoing
is a true and correct copy of the original Order for
Injunction, as the same appears on file and of record
in the office of the Clerk of said Court, in the therein
entitled cause.

In testimony whereof, I have hereunto subscribed
my name and affixed the seal of said Court, in the City
of Dayton, Ohio, this 24th day of August, A. D. 1922.

B. E. DILLEY, Clerk.
By (Sd) STEPHEN T. MALONEY, Deputy.

— 198 —

v. BENJAMIN DUBERSTEIN, et al.

THE COCA-COLA COMPANY,

Complainant,
v.

BENJAMIN DUBERSTEIN, _J IN,A0L

doing business as DAYTON * Na ] DAYTON'
MINERAL WATER COM-
PANY, et al.,

Defendants.

This cause having come on to be heard upon the re-
port of J. Q. A. Johnson, Esq., as Special Master, to
whom it was referred to take and report an account
for damages and profits in accordance with the decree
herein, which report is dated 3rd day of March, 1919,
and also upon the exceptions taken to said report on
the part of the defendant and on the motion of the
plaintiff for the confirmation of said report and said
cause having been argued by counsel for the respect-
ive parties, and due deliberation had thereon. The
Court finds that the exceptions of the defendant to
said report are not well taken, and does overrule all
of said exceptions except paragraph six, and said re-
port with respect to the amount of profits realized by
the defendant from the sale of the substitute for Coca-
Cola is found to be $319.18, instead of $387.70.

It is therefore, ordered, adjudged and decreed that
said defendant pay to said plaintiff the sum of
$682.80, which is the amount found by the Special
Master as stated in his report referred to, to be due
from the defendant to the plaintiff as modified herein
by the Court.

It is ordered, adjudged and decreed that said de-
fendant pay to said plaintiff his costs in said suit to

— 199 —

THE COCA-COLA COMPANY

be taxed and that the clerk tax in said costs the sum
of $250.00 as a reasonable fee of the Special Master
for his services in this cause and that said plaintiff
have execution for such costs and for the sums above
decreed to be paid to said plaintiff, to which ruling,
order and decree the defendant, Benjamin Duberstein,
by his counsel, excepts.

Ccmdler, Thomson & Hirsch, Matthews & Matthews,
atty's. for The Coca-Cola Co.

Kusworm & Shamon, atty's. for Defendant Benj.
Duberstein.

THE UNITED STATES OF AMERICA,
SOUTHERN DISTRICT OF OHIO, J>gg.

WESTERN DIVISION.

I, B. E. Dilley, Clerk of the District Court of the
United States within and for the District and Division
aforesaid, do hereby certify that the foregoing is a
true and correct copy of the original Final Decree, as
the same appears on file and of record in the office of
the Clerk of said Court, in the therein entitled cause.

In Testimony Whereof, I have hereunto subscribed
my name and affixed the seal of said Court, in the City
of Dayton, Ohio, this 24th day of August, A. D. 1922.

B. E. DILLEY, Clerk.

By STEPHEN T. MALONEY, Deputy.

— 200 —

IN THE UNITED STATES

DISTRICT COURT FOR

THE EASTERN DISTRICT

OF VIRGINIA

No. 39— IN EQUITY

THE COCA-COLA COMPANY,

v.
OLD DOMINION BEVERAGE CORPORATION.

CANDLER, THOMSON & HIRSCH,
EDWARD S. ROGERS,
C. V. MEREDITH,

For Complainant.

ROBERT E. SCOTT, Richmond, Virginia,
For Defendant.

201 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF VIRGINIA

No. 39— IN EQUITY

COCA-COLA COMPANY

v.
OLD DOMINION BEVERAGE CORPORATION.

DECREE

This cause coming on for trial upon the supple-
mental bill, answer thereto, and evidence and exhibits
produced by the parties, and having been argued by
counsel and considered by the court, it is Ordered, Ad-
judged and Decreed, as follows :

1. It having been held by the Circuit Court of Ap-
peals in the Coca-Cola Company v. Old Dominion
Beverage Corporation, No. 1729, that the defendant,
by use of the phrase Taka-Kola, violated plaintiff's
trade-mark rights in the phrase Coca-Cola and the
decree of this court entered July 12, 1921, upon the
mandate of the Circuit Court of Appeals, enjoins the
defendant, among other things, from the use of
"plaintiff's trade-mark Coca-Cola or any like word
or the colorable imitation thereof, Taka-Kola, or any
like word."

2. The defendant, since said decree, has changed
the name Taka-Kola to Takola, and is now using the
word Takola upon the same product to which it pre-
viously applied the word Taka-Kola.

3. The change in name from Taka-Kola to Takola
is not a compliance with the decree of this court en-

— 202 —

v. OLD DOMINION BEVERAGE CORPORATION

tered on the mandate of the Circuit Court of Appeals.

4. Takola is a like word to Taka-Kola and, in view
of the decision of the Circuit Court of Appeals, is an
infringement of plaintiff's trade-mark Coca-Cola.

5. The word Takola is a violation of the rights of
the plaintiff and an infringement of its said trade-
mark.

6. It is therefore further Ordered, Adjudged and
Decreed (without prejudice to the decree heretofore
entered in this cause) and in addition to the injunc-
tion therein decreed, that the said defendant, Old
Dominion Beverage Corporation, its officers, agents,
servants, employes, attorneys, licensees, transferees
and assigns, and each and all thereof, and all acting
by or under its authority, be and they are each and
all perpetually enjoined and restrained from using or
employing, or authorizing the use or employment, in
connection with the manufacture, advertisement, of-
fering for sale or sale of any beverage or ingredient
thereof, the word Takola or any like word, and that a
writ of perpetual injunction issue accordingly.

7. That defendant account to the plaintiff for any
and all profits derived by said defendant from de-
fendant's said infringement of plaintiff's trade-mark,
and in addition to the profits to be thus accounted for
by the defendant, that the defendant pay to the plain-
tiff the damage plaintiff has sustained by reason of
defendant's said infringement; and this cause is
hereby referred to Robert H. Talley, Esq., Master in
Chancery of this Court, to take and state an account-
ing to the plaintiff for any and all such profits and
any and all such damages, with full power to the
master to subpoena and order the attendance of wit-
nesses, to take depositions and require the production
of books, papers and documents pertinent to the tak-
ing and stating of said accounting, and to report to
this court such accounting and statement of profits
and damages, with the right to the plaintiff to move
the court to enter judgment upon such accounting for
any sum above the amount found as the actual

— 203 —

THE COCA-COLA COMPANY

damages, not exceeding three times the amount
thereof.

8. That all labels, signs, prints, packages, wrappers,
or receptacles in the possession of the defendant bear-
ing the word Takola, be forthwith delivered up for
destruction; provided, however, that the bottles of
the defendant with the name blown therein may be
used in the sale of drinks not resembling that of the
plaintiff, where the name Takola is removed or hid-
den, and the name of the contents of said bottles
plainly shown thereon.

9. Nothing in this decree shall in any manner or to
any extent restrict or lessen the relief granted the
plaintiff by said decree of July 12, 1921.

10. That defendant pay the costs of this suit to be
taxed and that upon taxation plaintiff have execution
therefor. .

11. Defendant having intimated a purpose to ap-
peal from this order and decree may upon filing said
petition for appeal and bond in the sum of $5000.00
have a super sedeas.

GRONER, Judge.
July 26, 1922.

A true copy — Teste:

JAMES D. BRADY, Deputy Clerk.

— 204

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE SOUTHERN
DISTRICT OF ILLINOIS

No. 47— JANUARY TERM, 1920

THE COCA-COLA COMPANY, Complainant,

v.

LOUIS L. EMMEESON, Secretary of State, JOHN
D. FLETCHER and THE NATIONAL CAR-
BONATING SYRUP COMPANY, Defendants.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
FRANK F. REED, EDWARD S. ROGERS, Chicago, 111.,
Solicitors and of Counsel for Plaintiff.

EDWIN C. HENNING,
For Defendants.

— 205 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF ILLINOIS,

SOUTHERN DIVISION

276 FEDERAL 1010

No. 47— JANUARY TERM, 1920

THE COCA-COLA COMPANY, Complainant,

v.
LOUIS L. EMMERSON, et «L

1

1. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION — 18 — "COCA-COLA" VALID TRADE-
MARK.

Coca-Cola Company held to have a valid trade-mark in the
name "Coca-Cola" as applied to the beverage widely known by
that name.

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— 79— EQUITY HAS JURISDICTION TO
GRANT APPROPRIATE RELIEF AGAINST INFRINGE-
MENT.

Equity has jurisdiction to grant appropriate relief against in-
fringement of a valid trade-mark and to that end may compel
the Secretary of State of a state to cancel the registration under
a state statute of an infringing trade-mark which constitutes a
cloud on the title of the true owner of the trade-mark.

3. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION — 70 (3) —"COCA-COLA" HELD IN-
FRINGED.

Labels for a beverage, registered under a state trade-mark
statute containirg the words "a genuine Coca and Cola flavor"
printed in four horizontal lines, "Coca and Cola" constituting one
line with the words "Coca" and "Cola" in large colored letters
and the word "and" in small type so that it would readily be
mistaken for complainant's trade-mark "Coca-Cola," held an in-
fringement of such trade-mark.

— 206 —

v. LOUIS L. EMMEBSON, et al.

4. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— 45— REGISTRATION UNDER STATE
STATUTE CONFERS NO EXCLUSIVE RIGHTS.

The trade-mark statute of Illinois (Kurd's Rev. St. 1919, c.
140) does not purport to confer any exclusive rights, and the
registration of trade-marks thereunder has no effect in giving them
the quality of trade-marks if not already such.

5. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— 42— STATE STATUTES ARE IN AF-
FIRMANCE OF COMMON-LAW RIGHTS.

State statutes providing for registration of trade-marks are in
affirmance of the common law, and remedies given by such statutes
are either declaratory or are cumulative and additional to those
recognized and applied by the common law.

6. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION— 45^— NEW VOL. 7A KEY-NO. SERIES
— OWNER ENTITLED TO CANCELLATION OF
FRAUDULENT REGISTRATION OF INFRINGING
TRADE-MARKS.

Where defendant by false and fraudulent representation pro-
cured the registration with the Secretary of State of Illinois under
the state statute, knowing that they were infringements on com-
plainant's trade-mark, complainant held entitled to join the Secre-
tary of State with defendant in a suit in equity for the purpose
of establishing its rights and procuring the cancellation of such
registrations.

7. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION — 41— TRADE-MARK RIGHTS NOT
LIMITED BY STATE STATUTE.

A valid trade-mark, long used in interstate commerce, cannot
be limited by denying it effect in a state because not registered
under a state statute permitting such registration.

In Equity. Suit by the Coca-Cola Company of Dela-
ware against Lewis G. Stevenson and others.
Decree for complainant.

The Coca-Cola Company of Georgia, substituted
pending the action by the Coca-Cola Company of
Delaware, sued to enjoin the defendants, John D.
Fletcher, a citizen of the state of Texas, and the
National Carbonating Syrup Company, a Delaware
company, doing business at the city of Evansville,

— 207 —

THE COCA-COLA COMPANY

Ind., from further infringing upon the trade-mark of
the plaintiff; also, seeking an order directing the Sec-
retary of State of the State of Illinois, Lewis G. Ste-
venson, and his successor Louis L. Emmerson, to can-
cel the registration of the purported trade-marks of
defendants Fletcher and the National Carbonating
Syrup Company, on the ground that the registration
was falsely and fraudulently procured.

The plaintiff and its predecessors had been engaged
in the manufacture of a syrup for an aerated beverage
and had caused the beverage itself to be bottled un-
der the direction and supervision by the plaintiff
known as " Coca-Cola, " since 1886. A vast sum of
money had been expended in advertising the trade-
mark " Coca-Cola " as indicating plaintiff's syrup
and the aerated beverage bottled therefrom. In the
year 1916, $1,943,178.40 had beep expended in bring-
ing the syrup and beverage manufactured and sold
under the trade-mark " Coca-Cola " to the attention of
the trade in interstate commerce. The production
of the syrup increased from 25 gallons in 1886 very
rapidly until the annual output had, in 1916, reached
9,715,892 gallons; the trade-mark "Coca-Cola" had
become favorably known everywhere; and the rights
of the plaintiff were repeatedly affirmed by adjudica-
tions in the United States courts. The trade-mark
was the subject matter of two registrations in the
United States Patent Office and prior thereto and
since had been used by the plaintiff in interstate com-
merce.

On March 16, 1916, plaintiff made application to the
Secretary of State of Illinois for the registration of
its trade-mark "Coca-Cola" under the provisions of
the Revised Statutes of Illinois (Chapter 140), fully
complying with all the terms and provisions of that
statute. The application, however, was rejected by
the Secretary of State because of prior registrations
by defendant John D. Fletcher, as follows:

"John D. Fletcher's Coca and Cola Carbonating
Syrup, Chicago, Illinois," the same being inclosed in

— 208 —

v. LOUIS L. EMMERSON, et al.

a red circular band and registered July 24, 1914. Also,
the words :

"John D. Fletcher's Carbonated Syrup, A Genuine
Coca and Cola flavor" the same being inclosed in a
broad corrugated wheel or circular band of blue and
registered October 6, 1914. Also,

< < Tri-Pure. A genuine Coca and Cola Flavor, 7 Fl.
Oz. Purest Drink in the World" — inclosed in a broad
corrugated wheel or circular band and registered
March 10, 1916. Also,

< < Tri-Pure. A Genuine Coca and Cola Flavor, 7 Fl.
Oz. Purest Drink in the World" — inclosed in a red
corrugated wheel or circular band and registered Sep-
tember 25, 1916 ; all of said registrations being in the
office of the Secretary of State of Illinois.

And the registrations of John D. Fletcher were per-
mitted to remain on record in the office of the Secre-
tary of State, thereby becoming clouds upon the title
and the exclusive right of the plaintiff to the enjoy-
ment of its trade-mark in Illinois.

Defendant Fletcher was formerly a resident of
Nashville, Tenn., and on or about February 15, 1911,
organized a corporation under the laws of Tennessee,
under the name of Nashville Syrup Company. He was
president, general manager, and one of the prin-
cipal stockholders of the company. Prior to the reg-
istrations in Illinois, a bill of complaint was filed in
the Circuit Court of the United States for the Middle
District of Tennessee by the plaintiff against the
Nashville Syrup Company, praying an injunction
against the defendant for infringing plaintiff's trade-
mark "Coca-Cola." Upon a hearing the pleadings in
the case, on July 29, 1912, a final decree was entered
perpetually enjoining the Nashville Syrup Company,
its agents, servants or employes, from further in-
fringing plaintiff's trade-mark. An appeal was
prosecuted from the decree to the Circuit Court of
Appeals for the Sixth Circuit, and on June 13, 1914,
the decree of the Circuit Court was affirmed. Coca-
Cola Co. v. Nashville Syrup Co. (D. C.) 200 Fed. 157;

— 209 —

THE COCA-COLA COMPANY

Nashville Syrup Co. v. Coca-Cola Co., 215 Fed. 527,
132 C. C. A. 39. Ann. Gas., 1915B, 358.

Fletcher knew of the suit and the adjudication in
the United States Circuit Court in Tennessee and
aided in the defense interposed to the bill. At the
time he filed his several applications for registration
of trade-marks in Illinois, defendant Fletcher knew
that the trade-mark "Coca-Cola" belonged to the
plaintiff and referred to and meant to the trade plain-
tiff's syrup and the non-alcoholic beverages made
therefrom under plaintiff's supervision, and that the
use of the alleged trade-marks by Fletcher was unlaw-
ful and his acts and representations in procuring the
registrations of his alleged trade-marks in Illinois,
embodying the trade-mark "Coca-Cola" in various
forms, was a fraud upon plaintiff's rights.

The National Carbonating Syrup Company's rights
to the trade-marks registered in Illinois were acquired
through defendant Fletcher.

The applications of Fletcher for the registration
of the trade-marks in question with the Secretary of
State of Illinois were in due form of law. The statute
authorizing the registration of trade-marks, labels,
etc., required the applicant to make a showing under
oath that he had the right to the use of the trade-
marks, the registration of which he sought, and that
no other person, firm, organization, union, or corpora-
tion had the right to such use either in the identical
form, or in any such near resemblance thereto as
might be calculated to deceive. In making this repre-
sentation required by the statute, defendant Fletcher
disregarded plaintiff's rights to the trade-mark
"Coca-Cola." The registrations procured were pro-
cured by reason of the representations made, and
upon a hearing the Court found that the representa-
tions were untrue and fraudulent, and that they are
a cloud upon the title to plaintiff's property.

It was contended upon the part of defendants
Fletcher and National Carbonating Syrup Company,
that the plaintiff was without remedy in equity on the

— 210 —

v. LOUIS L. EMMEBSON, et al.

ground of unclean hands, for the reason that at one
time, many years ago, it had been convicted of mar-
keting a syrup that contained slight traces of in-
gredients offensive to the pure food laws, and citing,
after submission, the opinion of the Circuit Court of
Appeals for the Ninth Circuit in Koke Co. of Amer-
ica v. Coca-Cola Co., 255 Fed. 894, 167 C. C. A. 214;
that plaintiff had no trade-mark rights in the name
"Coca-Cola" for either syrup or beverage; that the
mark was appropriated by plaintiff for a beverage
and never was applied; that it could have no com-
mon law trade-mark because the name arose and was
used to describe the ingredients in plaintiff's prod-
uct, i. e., extracts of coca leaves and cola nuts, and
being descriptive, even if registered by plaintiff under
the Act of February 20, 1905, it would only remove
it on the class of merchandise to which it had been
appropriated by the declaration and actually used ;
the declaration appropriated the mark to the class
known as beverages and as it was never used on
beverages, the descriptive disability has never been
removed ; that whatever rights the plaintiff may have
had in the trade-mark had become a nullity; that
plaintiff's trade-mark never attained a secondary
meaning as the name of plaintiff's product; that de-
fendants have always acted in good faith; that their
product is distinctively and truly flavored with coca
and cola; which are common products of the soil;
that defendants' product is Trico, and their trade-
mark distinctive; that the state or any other sov-
ereignty has the right to say how, when, and under
what terms a mark may be used within the limits of
that sovereignty; that plaintiff's product is not a
beverage.

Defendant Secretary of State attacked the multi-
far iousness of the bill.

Allen, Humphreys & Converse, of Springfield, 111.,
and Frank F. Reed and. Edward 8. Rogers, both of
Chicago, 111., for plaintiff.

Graham & Graham, of Springfield, 111., and Edward

— 211 —

THE COCA-COLA COMPANY

C. Henning, of Evansville, Ind., for defendants
Fletcher and National Carbonating Syrup Co.

Andrew J. Brundage, Atty. .Gen. of Illinois, and
Clarence M. Boord, Asst. Atty. Gen. for defendant
Secretary of State.

FITZHENRY, District Judge (after stating the facts
as above) :

The very recent decision of the Supreme Court
in Coca-Cola Co. v. Koke Co. of America, et al.,
254 U. S. 143, 41 S. Ct. 113, 65 L. Ed., has conclusively
disposed of the defense of " unclean hands" inter-
posed by the defendants in this case, upon the author-
ity of Koke Co. of America v. Coca-Cola Co., 255 Fed.
894, 167 C. C. A. 214 (C. C. A. 9th Cir.). While the
exact question in that case is not presented here, yet
the same principle is involved. It is claimed that none
of the chemical elements suggested by the name
" Coca-Cola "' wore in fact to be found in plaintiff's
syrup, and therefore it was a fraud upon the public.
The language of the Supreme Court in disposing of
that case is especially apt here:

"The name (Coca-Cola) now characterizes a
beverage to be had at almost any soda fountain.
It means a single thing coming from a single
source, and well known to the community. It
hardly would be too much to say that the drink
characterizes the name as much as the name the
drink. In other words 'Coca-Cola' probably
means to most persons the plaintiff's familiar
product to be had everywhere rather than a com-
pound of particular substances. Although the
fact did not appear in United States v. Coca-Cola
Co., 241 U. S. 265, we see no reasons to doubt that,
as we have said, it has acquired a secondary
meaning in which perhaps the product is more
emphasized than the producer, but to which the
producer is entitled."

This very recent decision of the United States Su-
preme Court settled many of the questions involved
in this case. The opinion of the Circuit Court of

— 212 —

v. LOUIS. L. EMMEESON, et al.

Appeals of the Ninth Circuit which was reversed was
submitted to this court for its consideration upon the
issues raised here, by the personal and corporate de-
fendants, upon the theory that the identical plaintiff
in this case had been adjudicated in the Circuit Court
of Appeals to be of such unclean hands that it should
be denied all relief in equity. The opinion disposes
of the question of ownership of the trade-mark and
recognizes that it has acquired a secondary meaning
in which perhaps the product is more emphasized
than the producer, but to which the producer is en-
titled.

It is well established that equity has jurisdiction
to: (1) Cancel fraudulent instruments affecting titles;
(2) to quiet title; (3) to remove a cloud on title; and
(4) to enjoin clouding a title. If at the time of
Fletcher's adoption and use of the trade-marks which
he registered in Illinois the plaintiff had title to and
was as far as possible, with this kind of property, in
possession of the trade-mark "Coca-Cola" then any
user or claim by another to that mark or a simulation
thereof was such a wrong and trespass upon plain-
tiff's trade field, as to bring the question within the
purview of equitable relief. 1 Storey's Equity, 700;
Coel v. Glos, 232 111. 142, 83 N. E. 529, 15 L. R. A.
(N. S.) 413; Hemstreet v. Burcick, 90 111. 444; Glos
v. Goodrich, 175 111. 20, 51 N. E. 643; Langlois v.
Stewart, 156 111. 609, 41 N. E. 177 ; Bradley v. Bell,
142 Ala. 382, 38 South 759; Grove v. Jennings, 46
Kan. 366, 26 Pac. 738 ; Hamilton v. Batlin, 8 Minn. 403
(Gil. 359) 83 Am. Dec. 787.

In a case of this character, where it is clear that
the legal remedy in the premises, mandamus, is ut-
terly inadequate to protect plaintiff's rights, equity
has full jurisdiction over the Secretary of State to
decree the plaintiff the relief to which it is entitled
and to compel the Secretary of State to carry out the
court's mandates by canceling any wrongful registra-
tions of the defendants which constitute a cloud upon
plaintiff's title and to permit the registrations of

— 213 —

THE COCA-COLA COMPANY

plaintiff's trade-mark. Greene v. L. & I. B. Co., 244
U. S. 499, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas.
1917E, 88; L. & N. B. Co. v. Bosworth (D. C.) 230
Fed. 191; 111. Central E. Co. v. Bosworth (D. C.) 209
Fed. 465; same v. Greene, 244 U. S. 555, 37 Sup. Ct.
697, 61 L. Ed. 1309; St. Louis & S. F. B. Co. v. Cross
(C. C.) 171 Fed. 480; Harrison v. St. L. & S. F. By.
Co., 232 U. S. 318, 34 Sup. Ct. 333, 58 L. Ed. 621,
L. B. A. 1915F, 1187 ; Phil. Co. v. Stimson, 223 U. S.
605, 32 Sup. Ct. 340, 56 L. Ed. 570; Lane v. Watts,
234 U. S. 525, 34 Sup. Ct. 965, 58 L. Ed. 1440.

In the trade-marks registered by defendant Fletcher
and attached to his answer, Exhibit A contains the
words "John D. Fletcher's Coca and Cola Carbonat-
ing Syrup, Chicago, Illinois. " B contains the words
"John D. Fletcher's Carbonating Syrup, A Genuine
Coca and Cola Flavor." C contains the words "Tri-
pure Purest Drink in the World, A Genuine Coca and
Cola Flavor. 7 Fl. Oz." D contains the words "Trico
Purest Drink in the World, Genuine Coca and Cola
Flavor. 6J Fl. Oz." In exhibit A the words "Coca"
and "Cola" are in type about twice the size of the
largest type in the label. The letters are outline type,
printed in two colors, blue and red. In Exhibits B
and C the words "A Genuine Coca and Cola Flavor"
form four horizontal lines the words "Coca and
Cola" being the longest line in the center of the
trade-mark, while the center of Exhibit D is ar-
ranged almost exactly the same as C, with the excep-
tion of the word "a," so that in all four of the reg-
istrations the catchy display line which would natu-
rally be the first to attract the eye is "Coca and Cola."
In Exhibit A the word "and" in the display line
"Coca and Cola" is printed in type probably one-
fourth as large as the type used in "Coca" and
"Cola," so that the word "and" might readily be
mistaken for the dash in plaintiff's trade-mark "Coca-
Cola." All of the labels now claimed by defendant
Fletcher as his trade-marks, and which were registered
by him, display a manifest purpose on the part of

— 214 —

v. LOUIS L. EMMERSON, et al.

the designer to attract the eye of and interest the
public in two words "Coca" and "Cola."

In the light of these facts, it is quite natural that
the Secretary of State should have held, when the
plaintiff endeavored to register its trade-mark, that
it was so similar to those already registered as to re-
quire him to deny registration. There could be no
better or more convincing evidence of the infringe-
ment than the official action of the Secretary of State
upon plaintiff's application. The addition of the
word * ' genuine ' ' and the adding of the word ' * flavor ' '
and the substitution of the word "and" for the dash
in plaintiff's trade-mark do not relieve defendant
Fletcher from his culpability as an infringer, but
rather by the arrangement of the labels, the registra-
tion of which he procured, makes the conclusion the
more irresistible that he clearly intended to appro-
priate to his own use the benefits of plaintiff's trade-
mark in Illinois. Added words and their embellish-
ment do not destroy rights in a trade-mark. Coca-
Cola Co. v. Nashville Syrup Co. (D. C.) 200 Fed.
153-155, 200 Fed. 157-160, affirmed 215 Fed. 327, 132
C. C. A. 39 ; Coca-Cola Co. v. Am. Druggists ' Syndicate
(D. C.) 200 Fed. 107; Fuller v. Huff, 104 Fed. 141,
43 C. C. A. 453, 51 L. E. A. 332 ; De Long v. De Long
Hook & Eye Co., 10 Misc. Rep. 577, 32 N. Y. Supp. 203 ;
Clark Thread Co. v. Admitage, 74 Fed. 936, 21 C. C. A.
178 ; Beecham v. Jacobs, 221 U. S. 263, 31 Sup. Ct. 555,
55 L. Ed. 729 ; Menendez v. Holt, 128 U. S. 514, 9 Sup.
Ct. 143, 32 L. Ed. 526.

Virtuous intentions cannot be attributed to defend-
ant Fletcher in his infringement upon the plaintiff's
rights. He personally procured the registrations; he
is the president of the corporation defendant, National
Carbonating Syrup Company, and he was the presi-
dent, general manager, and one of the largest stock-
holders of the Nashville Syrup Company, which was
enjoined from infringing upon the plaintiff's trade-
mark by the decree of the United States Circuit Court
for the Middle District of Tennessee (Coca-Cola Co.

— 215 —

THE COCA-COLA COMPANY

v. Nashville Syrup Co. [D. C.] 200 Fed. 153, 215 Fed.
327, 132 C. C. A. 39), and was one of the persons who
come within the rule that an officer, director, or stock-
holder of a corporation is bound and estopped by judg-
ment against the corporation, when he has full knowl-
edge and participates in the defense (Hancock Nat'l.
Bank v. Farnum, 176 U. S. 640, 20 Sup. Ct. 506, 44
L. Ed. 619; Singer v. Hutchinson, 183 111. 606, 56
N. E. 388, 75 Am. St. Rep. 133; United States v.
United States Shoe Machinery Co. [D. C.] 234 Fed.
127). So we conclude that in designing the trade-
marks, the registration of which Fletcher procured,
his purpose to use plaintiff's trade-mark was not only
clear and deliberate, but with full knowledge of plain-
tiff's rights. The character of defense interposed
strengthens this view, for it is contended, practically,
that inasmuch as the trade-martt "Coca-Cola" was
not registered, anybody could register it and that the
first person to do so would be the legal owner thereof
and entitled to its use. This, of course, is a mistaken
view of the Illinois statute. Registration does not and
cannot create or bestow the exclusive right to use a
trade-mark, nor does the statute so provide.

There is nothing in the Illinois statute requiring
registration preliminary to a suit, or the making of
the certificate anything more than evidence of adop-
tion, nor does it provide that registration shall con-
fer any exclusive right, nor is any means provided for
the settling of contested priority claims in the office
of the Secretary of State between two applicants.
Where a similar statute of New York was under con-
sideration, the Court of Appeals said :

"It may be observed, however, that the Legis-
lature by this Statute has not attempted to confer
trade-mark rights, but merely to more effectively
regulate existing common-law trade-marks and to
afford an additional speedy remedy for the vio-
lation thereof, and to prevent fraud and imposi-
tion on the public, which are matters within the

— 216 —

v. LOUIS L. EMMEBSON, et al.

police power of the State." Prest-0-Lite Co. v.
Bay, 162 App. Div. 62, 147 N. Y. Supp. 138.
Only the owner of a trade-mark has the right to
register it. Defendant Fletcher must now be held to
have known that the plaintiff here and its prede-
cessors owned the trade-mark "Coca-Cola" by adop-
tion and use since 1886, and this ownership and the
rights of the plaintiff to it have been adjudicated so
frequently in the federal and state courts that it has
become a matter of such common knowledge as to
make the citation of authorities entirely unnecessary.
In the light of this situation, it is not difficult for
the court to conclude as to which of the contending
parties judicial protection should be granted. Carroll
& Son v. Mcllvaine & Baldwin (C. C.) 171 Fed. 125.

Where it was contended that registration created
rights, the Supreme Court of the United States said:
"This exclusive right was not created by the
act of Congress, and does not now depend upon
it for its enforcement. The whole system of
trade-mark property and the civil remedies for
its protection existed long anterior to that act,
and have remained in full force since its passage. ' '
Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550.
Begistration cannot confer a title to a trade-mark,
if some other individual has acquired a prior right by
adoption and use ; nor can it vest a title in the reg-
istrant as against another's common-law title. Car-
roll & Son v. Mcllvaine & Baldwin (C. C.) 171 Fed.
125.

The general rule adopted by the courts on this sub-
ject is that the state statutes providing for registra-
tion of trade-marks are in affirmance of the common-
law; that the remedies given by such statutes are
either declaratory or are cumulative and additional
to those recognized and applied by the common law.
Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550. The
registering of defendant Fletcher's trade-marks with
the Secretary of State has no effect in giving them

— 217 —

THE COCA-COLA COMPANY

the quality of trade-marks if not already such. Oakes
v. St. Louis Candy Co., 146 Mo. 391, 48 S. W. 467.

Business good will and trade-marks indicative there-
of are property rights and considered and treated as
such. Hanover Star Milling Co. v. Metcalf, 240 U. S.
403, 36 Sup. Ct. 357, 60 L. Ed. 713. The plaintiff here
and its predecessors had used the trade-mark " Coca-
Cola" in interstate commerce since 1886 and had used
it in connection Avith its business in intrastate com-
merce in Illinois for a great many years before the
recording of defendant Fletcher's trade-marks with
the Secretary of State. The good will of the public
and the trade-mark indicative thereof in Illinois were
plaintiff's property at the time of the filing of the
trade-marks by Fletcher and were entitled to the pro-
tection which the law gives.

Section 3 of the Trade-Marks^ Act of Illinois pro-
vides :

" Every such person, association or union that
has heretofore adopted or used, or shall here-
after adopt or use, a * trade-mark as
provided in section 1 of this act shall file the
same for record in the office of the Secretary of
State, by leaving two copies : with said
Secretary, and by filing therewith a sworn state-
ment specifying the name or names of the per-
son * * * on whose behalf such trade-
mark : : shall be filed, the class of merchan-
dise and particular description of the goods to
which it has been or is intended to be appro-
priated; that the party so filing, or on whose be-
half such : : trade-mark : : shall be filed,
has the right to the use of the same, and that no
other person, firm, association, union or corpora-
tion has the right to such use either in the iden-
tical form or in any such near resemblance there-
to as may be calculated to deceive, and that the
facsimile copies or counterparts filed therewith
are true and correct." 111. E. S. c. 140, Sec. 3,
6 J. & A. Ann. Stat. 6335.

— 218 —

v. LOUIS L. EMMEESON, et al.

Defendant Fletcher undoubtedly made the proof re-
quired by this statute, and in doing so he knew, by
reason of the prior adjudication of plaintiff's trade-
mark in Coca-Cola Co. v. Nashville Syrup Co. (P. C.)
200 Fed. 157, as well as his experience and knowl-
edge of plaintiff's business and trade-mark, evidenced
by the manifest purpose of the design of the trade-
marks, the registration of which he procured, the
showing which he made to the Secretary of State in
compliance with the statute was false and fraudulent.

There can be no question as to the right of the plain-
tiff even though a foreign corporation to enter a
forum in the state of Illinois for the purpose of pro-
tecting its property rights (Peck Bros. & Co. v. Peck
Bros. Co., 113 Fed. 291, 51 C. C. A. 251, 62 L. E. A.
81) ; nor that the Secretary of State is a proper party
to plaintiff's bill; and that mandamus would be an
inadequate remedy. (People v. Eose, 219 111. 46, 76
N. E. 42; People v. Van Cleave, 183 111. 330, 55 N. E.
698, 47 L. E. A. 795 ; Bender v. Bender, 178 111. App.
203 ; International Committee of Y. M. C. A. v. Y. W.
C. A., 194 111. 194, 62 N. E. 551, 56 L. E. A. 888.) The
Attorney General of Illinois on behalf of the Secre-
tary of State presses the point of multifariousness.
The bill comes clearly within Equity Eule 26 (198 Fed.
xxv, 115 C. C. A. xxv).

The record shows that the Secretary of State was
misled into recording Fletcher's trade-marks by rea-
son of the false showing made in connection with the
application. In other words, the joint effect of
Fletcher's misconduct which resulted in the Secre-
tary's official action based thereon constitute a cloud
upon the title of plaintiff's property which equity will
remove. Eule 26 (198 Fed. xxv, 115 C. C. A. xxv)
does not drive the plaintiff into a circuity of actions,
first, to resort to equity to establish its property
rights over defendant Fletcher's claims and then to
bring a separate action against the Secretary of State
to cancel the illegal and unlawful registrations which
constitute a cloud upon plaintiff's title and to procure

— 219 —

THE COCA-COLA COMPANY

the registration of plaintiff's trade-mark. Equity
will avoid a multiplicity of suits.

The claim that "Genuine Coca and Cola Flavor" is
truthfully descriptive of the flavor of defendant's
product is disposed of by Coca-Cola Co. v. Koke Co.
of America, 254 IT. S. 143, 41 Sup. Ct. 113, 65 L. Ed. ;
Davids Co. v. Davids, 233 U. S. 461, 34 Sup. Ct. 658,
58 L. Ed. 1046; Coca-Cola Co. v. Nashville Syrup Co.
(D. C.) 200 Fed. 157. And this would be true even
in the absence of the stipulation in this case that
"Coca-Cola" has a secondary or distinctive meaning.

To adopt the contention of the defendants as to
territorial limitations would be to recognize an un-
lawful burden upon or interference with or obstacle
to interstate commerce, in contravention of the long
line of authorities upon that subject which hold that
such a burden is unlawful, regardless of whether it
is an attempt by reason of a regulatory statute, a
license tax, or the enforcement of a trade-mark regis-
tration act. The case upon which defendants rely
(Hanover Star Milling Co. v. Metcalf, 240 U. S. 103, 36
Sup. Ct. 357, 60 L. Ed. 713) is inapplicable to sustain
their position as no registration of a trade-mark was
under discussion in that case by the Supreme Court.
That decision disposed of the rights of the parties as
to common-law trade-marks.

Defendants make the point that because the plain-
tiff does not bottle the beverages made from its
syrups, but permits others to do so under supervisory
bottling contracts, takes this case out of the rule with
reference to adoption and user, for the reason, it is
charged, that plaintiff's trade-mark is only used upon
the syrup. The courts have held that the sufficiency
of plaintiff's supervisory contracts over its bottlers
justifies the employment of plaintiff's trade-mark
"Coca-Cola" on the bottled product. Coca-Cola Co.
v. Deacon Brown Bottling Co. (D. C.) 200 Fed. 105;
Coca-Cola Co. v. J. G. Butler (D. C.) 229 Fed. 224.
In the latter case equity enjoined a bottler from using
the syrup and beverage made therefrom without super-

— 220

v. LOUIS L. EMMEESQN, et al.

vision, against the plaintiff's wishes. The court held
the same in Coca-Cola Co. v. Bennett, 238 Fed. 513,
151 C. C. A. 449.

The personal and corporate defendants earnestly
contended that their trade-mark is "Trico" and not
a "Genuine Coca and Cola Flavor," but simply the
word "Trico" which described its syrup and the bev-
erage made from it. This court can see no objection
to a full enjoyment of the benefit of any trade-mark
by the defendant if properly limited, but in equity and
in good conscience it should not be permitted to use
a combination of words which will mislead the public
into believing that it is getting a beverage which con-
tains the "Coca-Cola" flavor. To permit defendants
to do so would be to permit them to apply to their
own use, the benefit of the stupendous sums of money
which have been appropriated and expended for ad-
vertising plaintiff's goods throughout the length and
breadth of the country; to cause confusion, and in a
way, to permit the public to deceive itself, to the detri-
ment of the plaintiff, who, undoubtedly, owns the
trade-mark and all rights concerning it, as well as the
good will of the business and who is entitled to the
full enjoyment of it. As the Supreme Court so
recently said :

"It hardly would be too much to say that the

drink characterizes the name as much as the name

the drink."

The name, it must be conceded, is owned by the
plaintiff.

A decree will be entered in line with these views
and the facts heretofore found.

221 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF ILLINOIS,

SOUTHERN DIVISION

Monday May 16, 1921, Court met pursuant to adjourn-
ment. Present, The Honorable

LOUIS FlTzHENRY, Judge.

No. 47— IN EQUITY

I

THE COCA-COLA COMPANY, a Delaware Cor-
poration, Plaintiff,

v.

LOUIS L. EMMERSON, Secretary of State, JOHN
D. FLETCHER and THE NATIONAL CAR-
BONATING SYRUP COMPANY, a Corporation,
Defendants.

DECREE.

This cause coming on for final hearing upon plead-
ings and proofs, and being argued by counsel, and the
court having found the facts by the findings of fact
filed in said cause, and upon motion of the plaintiff
for a decree, it is Ordered, Adjudged and Decreed as
follows :

(1) That the defendants, John D. Fletcher and The
National Carbonating Syrup Company, do forthwith
execute and deliver to defendant Louis L. Emmerson,
Secretary of State of the State of Illinois, proper

— 222 —

v. LOUIS L. EMMERSON, et al.

cancellation of the alleged registrations of trade-
marks and labels, four in number, made in the Office
of the Secretary of State of the State of Illinois by
defendant, John D. Fletcher, and now claimed by de-
fendant, The National Carbonating Company, and
specified and set forth in the pleadings, evidence and
findings of the court, and in this decree, and that said
defendant, Louis L. Emmerson, Secretary of State,
do forthwith in due and proper form annul and can-
cel and enter cancellations and annulments of said
registrations, and each thereof.
Said registrations are as follows:

A. "John D. Fletcher's Coca and Cola Car-
bonating Syrup, Chicago, Illinois," enclosed in a
red circle and registered in the office of the then
Secretary of State of the State of Illinois by said
John D. Fletcher on or about July 24, 1914, and
a like registration filed by said Fletcher, Oc-
tober 9, 1914, and also shown as Exhibit "A" to
the answers of John D. Fletcher and The National
Carbonating Syrup Company filed herein on or
about May 28, 1917.

B. "JohnD. Fletcher's Carbonating Syrup. A
Genuine Coca and Cola Flavor" same being en-
closed in a broad corrugated wheel or band of
blue and registered by said John D. Fletcher on
or about October 6, 1914, in the office of the then
Secretary of the State of Illinois, and shown as
Exhibit "B" to the answers of said John D.
Fletcher and The National Carbonating Syrup
Company, filed herein on or about the 28th day
of May, 1917.

C. "Tri-Pure. A Genuine Coca and Cola
Flavor, 7 Fl. Oz. Purest Drink in the World"
enclosed in a red corrugated wheel or circular
band and registered in the office of the then Secre-
tary of State of the State of Illinois on or about
March 10, 1916, by said John D. Fletcher and
shown as Exhibit "C" to the answers of said
John D. Fletcher and The National Carbonating

— 223 —

THE COCA-COLA COMPANY

Syrup Company filed herein on or about May 28,
1917.

D. "Trico. Genuine Coca and Cola Flavor.
6J Fl. Oz. Purest Drink in the World" enclosed
in a red corrugated wheel or circular band and
registered on or about September 25, 1916, in the
office of the then Secretary of State of the State
of Illinois by said John D. Fletcher and shown as
Exhibit "D" to the answers of said John D.
Fletcher and The National Carbonating Syrup
Company, filed herein on or about May 28, 1917.
That the said defendant Louis L. Emmerson, Secre-
tary of State of Illinois, do forthwith, upon retender
to him of the application made by the original plain-
tiff herein on or about March 16, 1916, or of a new
application in due form made by the present plaintiff,
herein, in each case with proper fee for registration,
allow registration and issue certificate of registration
therefor of the words " Coca-Cola'" and deliver the
said certificate of registration to said present plaintiff.
(2) That said John D. Fletcher, his agents, serv-
ants, attorneys, associates and assigns, and the said
defendant The National Carbonating Syrup Company,
its officers, directors, agents, attorneys, servants and
employees, successors and assigns, and each and
every thereof, be and the same, and each thereof
hereby are perpetually enjoined and restrained from
registering and from using and employing upon or in
connection with syrups, extracts or beverages made
therefrom the words or phrases "Coca-Cola," "Coca
and Cola," "Coca and Cola Carbonating Syrup" and
"A Genuine Coca and Cola Flavor," or any thereof,
or any like word or phrase, and from using as labels,
crowns, capsules or trade-marks, or in advertising, the
designs, marks or labels specified as A, B, C, and D,
in Paragraph (1) hereof, or any form of label, crown
or capsule, or any word or words, phrase or phrases
calculated to deceive consumers or buyers of plain-
tiff's product, or to pass off the product of said de-
fendants as and for the product of plaintiff, or to

— 224 —

v. LOUIS L. EMMERSON, et al.

induce the belief that the product of either of said
defendants is the product of the plaintiff and that a
writ of injunction issue accordingly.

(3) Plaintiff having in open court waived an assess-
ment of damages and accounting of profits to this date
and recovery thereof to date from and by said defend-
ants, John D. Fletcher and The National Carbonating
Syrup Company, and each thereof, this decree is made
final.

(4) That the plaintiff do have and recover from
said defendants, John D. Fletcher and The National
Carbonating Syrup Company, the costs of this pro-
ceeding to be taxed, and have execution therefor.

Louis FITZHENRY, Judge.
May 16th, 1921.

Frank F. Reed, solicitor and of counsel for plaintiff.

Edwin C. Henning, attorney for all defendants, except
Emmerson.

— 225 —

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE EASTERN
DISTRICT OF VIRGINIA

3 T. M. R. 126

IN

THE COCA-COLA COMPANY

v.
THE VIRGINIA SYEUP COMPANY

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,

HARRY D. NIMS, New York City,

C. V. MEREDITH, Richmond, Virginia,

Solicitors and of Counsel for Complainant.

— 220 —

COCA COLA

IN EQUITY

THE COCA-COLA COMPANY

v.
THE VIRGINIA SYRUP COMPANY

WADDILL, District Judge.

This cause is now before the court for final hearing
upon the pleadings and proofs, and upon the applica-
tion for the injunction prayed for, and the conclusion
reached by the court thereon is that the complainant
has a valid statutory trade-mark in the word or
words, "Coca-Cola," and that the defendant, in the
manufacture and vending of its compound known as
"Crescent Coca-Cola" is infringing the complainant's
trade-mark, and hence, the injunction prayed for
should be granted.

Reference may be had to the recent decision of
Judge SANFOKD, in the case of Coca-Cola Co. v. Nash-
ville Syrup Co., 200 Fed. 157, and the authorities re-
ferred to therein, as containing a full and interesting
discussion of the subject under consideration.

A true copy: Attest:

JOSEPH P. BEADY, Clerk.

Filed March 5, 1913.

227 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT

OF VIRGINIA

THE COCA-COLA COMPANY, Complainant,

v.
VIRGINIA SYRUP COMPANY, Defendant.

This cause came on to be further heard at this term
and was argued by counsel ; and thereupon, upon con-
sideration thereof and it appearing that the complain-
ant does not desire to take any probf before the Special
Commissioner, E. M. Long, as to the damages which
it has sustained by reason of the sale or sales made
by the defendant or his agent and employees as al-
leged in complainant's bill, it is Ordered, Adjudged
and Decreed that the complainant recover of the de-
fendant all its costs in this suit had and expended, and
nothing further remaining to be done herein, it is
further Ordered that this suit be stricken from the
docket and placed among the ended causes.

(Signed) EDMUND WADDILL, JR.,

U. S. District Judge.

Richmond, Virginia, October 6, 1914.
A true copy. Teste:

Deputy Clerk.

— 228 —

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE SOUTHERN
DISTRICT OF NEW YORK

200 FEDERAL 107

OCTOBER 7, 1912

THE COCA-COLA COMPANY,

v.
AMERICAN DRUGGISTS' SYNDICATE, et al.

HARRY D. NIMS, New York City,
CANDLER, THOMSON & HIRSCH, Atlanta,
COLBY & GOLDBECK, New York City,
For Complainant.

S. STANWOOD MENKEN,

For Defendants.

— 229

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF NEW YORK

200 FEDERAL 107

OCTOBER 7, 1912

THE COCA-COLA COMPANY,

v.
AMERICAN DRUGGISTS' SYNDICATE, et al.

TRADE-MARKS AND TRADE-NAMES (Sec. 95) — IN-
FRINGEMENT—INJUNCTION.

Complainant's trade-mark "(Oca-Cola" applied to a soft drink
sold at soda fountains, was /iriina facie infringed by defendant's
sale of a similar preparation under the term "Extract of Coca and
Kola" so as to entitle complainant to a preliminary injunction.

(ED. NOTE. — For other cases see Trade-marks and Trade-names —
Cent. Dig. Sec. 108; Dec. Dig. Sec. 95.)

In Equity. Suit by The Coca-Cola Company against
the American Druggists' Syndicate and others.
On motion for preliminary injunction. Granted.

Harry D. Nims, of New York City, Candler, Thom-
son & Hirsch, of Atlanta, Ga., and Colby & Goldbeck,
of New York City, for complainant.

8. Stanwood Menken, for defendants.

LACOMBE, Circuit Judge :

In Coca-Cola Co. v. Nashville Syrup Co. (U. S.
District Court, Middle District of Tennessee, July 8,
1912, 200 Fed. 157) it was held, in a carefully consid-.
ered opinion, that complainant has a valid registered

— 230 —

v. AMERICAN DRUGGISTS' SYNDICATE, et al.

trade-mark in the term " Coca-Cola, " applied to the
well-known soft drink which it makes and vends. This
conclusion I am inclined to accept as correct.

The only question left is whether, in undertaking
to afford relief against the use by others of a similar
term, the court should enjoin the defendants from
selling the preparation which the defendant Syndicate
makes under the term "Extract of Coca and Kola."
It is no substantial departure from the term "Coca-
Cola" to spell either or both words with a K, or to
substitute for the hyphen the conjunction "and"
or an ampersand, and it seems not to be a sufficient
differentiation to call the compound an extract, or an
elixir, or a decoction.

For obvious reasons, both sides insist that the cola
constituent of their respective compounds has been
thoroughly decocainized thus depriving it of its pe-
culiarly characteristic element. There is not in the
record any satisfactory evidence that a combination
of decocainized coca with cola has ever been used, or
is usable, in medicine or in the arts, or any otherwise
than a soft drink. Under these circumstances it
would seem that complainant is entitled to an injunc-
tion against the further use of the term "Extract of
Coca and Kola," or any similar term as the name of
defendant's soft drink. That the drink as sold is con-
centrated, so as to require dilution by the dispensing
druggist and the addition of sweetening to make it
a safe and palatable ingredient to be added at the
soda fountain to aerated water, seems immaterial.

The operation of the injunction will be stayed for
60 days after entry of the order.

— 231 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF NEW YORK

THE COCA-COLA COMPANY,

Complainant,
v.

AMERICAN DRUGGISTS' SYNDI-
CATE; REID, YEOMANS &
CUBIT; HENRY B. SMITH;
STEPHEN E. DORN; THE
CARTWRIGHT COMPANY;
JULIUS C. BELMONTE; BELA
KRAMER ; MAX NEWMAR K ;
EDWARD LEGOLL; PETER
DIAMOND; ROBERT GOLD-
BERG; MORRIS L. SWEITZER;
ABRAHAM SETTEL; JOHN M.
KRAUSE and JOHN H. EBER-
HARDT, Co-Partners doing busi-
ness under the firm name and style
of KRAUSE & COMPANY.

Defendants.

E. 9-296.

This cause coming on to be heard on complainant's
motion for a final decree, and complainant appearing
by its solicitors Candler, Thomson & Hirsch, of At-
lanta, Georgia, Colby & Goldbeck and Harry D. Nims,
of New York City, and the defendant American Drug-
gists' Syndicate appearing by its solicitors Philbin,
Beekman, Menken & Griscom, of New York City, and
the defendants, Reid, Yeomans & Cubit ; Henry B.
Smith; Stephen E. Dorn; The Cartwright Company;
Julius C. Belmonte ; Bela Kramer ; Max Newmark ; Ed-
ward Legoll; Peter Diamond; Robert Goldberg; Mor-
ris L. Sweitzer ; Abraham Settel ; John M. Krause and
John H. Eberhardt, co-partners doing business under
the firm name and style of Krause & Co. appearing

— 232 —

v. AMERICAN DRUGGISTS' SYNDICATE, et al

by their solicitors D. Raymond Cobb, of Syracuse,
New York, and it appearing to the Court that the is-
sues involved herein have been settled and agreed
upon by the parties hereto, the defendants agreeing
to consent to the entry of a final decree in the form
following, now, on motion of Harry D. Nims, of coun-
sel for the complainant, it is

Ordered, Adjudged and Decreed, That a perpetual
injunction be issued pursuant to the prayer of the Bill
of Complaint herein, strictly commanding and enjoin-
ing the defendants American Druggists' Syndicate,
Reid, Yeomans & Cubit, Henry B. Smith, Stephen E.
Dorn, The Cartwright Company, Julius C. Belmonte,
Bela Kramer, Max Newmark, Edward Legoll, Peter
Diamond, Robert Goldberg, Morris L. Sweitzer,
Abraham Settel, and John M. Krause and John H.
Eberhardt, co-partners doing business under the firm
name and style of Krause & Co., their agents, serv-
ants, employees, associates, and each and every of
them, that he, it and they desist and refrain from any
further use, directly or indirectly of the term "Ex-
tract Coca & Kola," or any similar term as the name
of the soft drink manufactured, advertised and sold
by the defendant American Druggists' Syndicate, and
which is referred to in the bill of complaint herein;
and it is further

Ordered, Adjudged and Decreed, That the defend-
ants be relieved from the payment of any and all
damages whatsoever; and it is further

Ordered, Adjudged and Decreed, That no costs be
payable to either of the parties hereto by the other.

GEO. C. HOLT, Judge,
United States District Court.

We consent to the entry of the foregoing decree :

Philbin, BeeJcman, Menken & Griscom,

Solicitors for American Druggists ' Syndicate.

D. Raymond Cobb,

Solicitor for Reid, Yeomans & Cubit, et al.

— 233 —

THE COCA-COLA COMPANY

Harry D. Nims,

Solicitor for Complainant.

Endorsed : IT. S. District Court, S. D. of N. Y., filed
May 21, 1913.

UNITED STATES OF AMERICA, )

f CO •

SOUTHERN DISTRICT OF NEW YORK. )

/, Alexander Gilchrist, J/\, Clerk of the District
Court of the United States for the Southern District
of New York, do hereby Certify that the Writings
annexed to this Certificate, namely, Final Decree filed
May 21, 1913, in the case entitled The Coca-Cola Com-
pany against American Druggists ' Syndicate, Equity
9-296 have been compared by me with their originals
on file and remaining of record in my office; that they
are correct transcripts therefrom* and of the whole of
the said originals.

In Testimony Whereof, I have hereunto subscribed
my name and affixed the seal of the said court at the
City of New York, in the Southern District of New
York, this 22nd day of August in the year of our Lord
One Thousand Nine Hundred and Twenty-two, and of
the Independence of the said United States the One
Hundred and Forty-seventh.

(Seal) ALEX. GILCHRIST, JR., Clerk.

— 234 —

274 FEDERAL 481

JULY 22, 1921

THE COCA-COLA COMPANY,

v.
BROWN & ALLEN.

1. COURTS KN. 328 (3)— VALUE OF GOOD WILL— ELE-
MENT OF VALUE INVOLVED FOR JURISDICTIONAL
PURPOSES.

In a suit to enjoin an alleged unfair trade practice affecting the
value of complainant's good will, such value may be considered
in determining the amount involved for jurisdictional purposes.

2. TRADE-MARKS AND TRADE-NAMES AND UNFAIR
COMPETITION KN. 68— UNFAIR TRADE PRACTICE
MAY BE ENJOINED.

Complainant, which makes and sells a well-known syrup for
soda fountains, to be diluted with carbonated water and sold to
the public as a drink, held entitled to an injunction to restrain
defendants, who operate a soda fountain, from diluting complain-
ant's syrup and adding other ingredients, before placing it in
their fountain, and drawing and selling the mixture as complain-
ant's drink.

In Equity. Suit by The Coca-Cola Company against
Brown & Allen. On motion for preliminary in-
junction. Granted.

Candler, Thomson & Hirsch, of Atlanta, Georgia,
for complainant.

— 235 —

THE COCA-COLA COMPANY

Brewster, Howell & Heyman, of Atlanta, Georgia,
for defendant.

SIBLEY, District Judge :

The Coca-Cola Company is the manufacturer of a
syrup known as Coca-Cola, which it sells to soda
founts to be diluted with carbonated water and sold as
a drink to the public. To create a public demand it
spends annually much money in advertising, and has a
large and well-established patronage for its drink so
sold. Brown & Allen, operating a soda fount, pur-
chase Coca-Cola from The Coca-Cola Company and
dispense it. An injunction pendente lite is now sought
against an alleged unfair practice of Brown & Allen.

(1) 1. Jurisdiction is contested because an insuffi-
cient amount is said to be involved. It may be that
the damages recoverable from Brown & Allen are less
than $3,000.00, or even that none are recoverable be-
cause incapable of estimation; but the wrong alleged
affects the value of petitioner's good will in business,
which may be greatly injured by a continuance of the
practice attacked. The value of this good will, which
greatly exceeds $3,000.00, may be looked to in deter-
mining the amount involved, and the jurisdiction is
thereby sustained. Frontera Transp. Co. v. Abaunza
(C. C.'A.) 271 Fed. 199.

(2) 2. The evidence authorizes a finding that,
while filling glasses for Coca-Cola, the defendants
at their fount, in the presence of the customer,
draw into the glass an amount of syrup resembling
in consistency and color petitioner's product, and
then add the usual amount of carbonated water and
such flavors as the customer may order. The syrup
so drawn is Coca-Cola, to which water, sugar, and
caramel have been added before putting it in the
fount. The water, of course, increases the amount of
syrup and weakens it. The sugar, however, serves to
restore its consistency and the caramel its color; they
being used for this purpose in making the original
syrup. Analyses indicate that the adulteration

— 236 —

v. BEOWN & ALLEN

results in making about two gallons out of one. Thus,
if the usual amount of syrup is drawn for a customer,
his drink really contains but one-half the peculiar
constituents of Coca-Cola, and is somewhat altered,
perhaps, in taste.

It is contended that this is not only a fraud upon
the public, but reflects itself also as one upon the peti-
tioner, because the customer, in the language of the
street, will conclude that "Coca-Cola is no good any
more," and its popularity will be destroyed. On the
other hand, it is said that the syrup was sold to be
diluted, and the time and manner of its dilution is
immaterial, and that by treating it as they do defend-
ants please their customers and act within their
rights.

No statute is involved. No contract restricting the
manner of use or sale of the syrup is shown. No
mark, of course, is upon the wares sold at the fount,
and petitioner's trade-mark is, therefore, not involved.
It is not an ordinary case of unfair competition, where
one substitutes a spurious and imitative article and
sells it as another's product. Indeed, it is said there
can be no competition between a wholesaler and a re-
tailer (Eegent Shoe Mfg. Co. v. Haaker, 75 Neb. 426,
106 N. W. 595, 4 L. E. A. [N. S.] 477), and in point
of fact the defendants are using and selling the peti-
tioner's very product. But the genuine article has
been altered by dilution and by disturbance of the
proportions of its ingredients, and so sold. Counsel
have found no authority respecting the right of a
purchaser in bulk from the wholesaler to dilute or
adulterate the article purchased and sell it as the
product of the maker.

Without doubt the retailer here, because of the na-
ture of the business and the way in which the syrup
is ordinarily used therein, may dilute Coca-Cola
syrup in offering it for sale. It is never drunk other-
wise than diluted. He may also sweeten it by adding

907

&O I

THE COCA-COLA COMPANY

sugar, if that is desired by his customer, or he
may similarly add anything else the customer desires.
He may even develop a peculiar and popular mixture,
which may make his Coca-Cola known and sought as
such. But can he, with no claim made to the public
of a distinctive mixture, and relying solely on the
reputation of Coca-Cola as developed by its maker,
deceptively dilute and cheapen it for the additional
profit to be thus made? Such conduct is immediately
a fraud on the purchasing public. It is also a fraud
of which the maker may complain, because it tends
to disrupt that connection between him and the
purchasing public, built up at large expense and
through a long time, which the law recognizes and pro-
tects as a good will, indirect and intangible though the
connection be. )

There seems to be nothing in the way of defendants
selling weak Coca-Colas, or sweet ones, if they will;
but it ought to be openly done. The syrup drawn in
the customer's presence on his call for Coca-Cola
ought to be the unadulterated article. That it is such
is the fair intendment of the transaction. The custo-
mer understands the syrup drawn to be what he
calls for. What is afterwards added by way of dilu-
tion or spiking he sees, and is not deceived by it. If
defendants should put one-half quantity in the glass,
instead of half strength, in serving Coca-Cola, it
would be at once seen. The conclusion is inescapable
that the dilution was made before the syrup was
drawn, and concealed as to consistency and color by
sugar and caramel, in order to deceive the purchaser
as to its strength, and not in order to make weak or
sweet Coca-Cola. Against the continuance of this
practice petitioner is entitled to protection. If it is
not done to deceive, defendants can have no objection
to stopping it.

An injunction pendente lite will be ordered against
drawing from the fount for mixture and sale as

— 238 —

v. BROWN & ALLEN

Coca-Cola on calls therefor any other than the unal-
tered and unadulterated syrup made by petitioner and
known as Coca-Cola.

— 239 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN

DISTRICT OF GEORGIA,

NORTHERN DIVISION

IN EQUITY

THE COCA-COLA COMPANY,

v.
BROWN & ALLEN.

FINAL DECREE.

An injunction, during the pendency of the cause,
and until a further order of this Court, having been
granted on the 27th day of July, 1921, after a hear-
ing upon the bill, answer and affidavits, and having
been argued by counsel for the respective parties and
submitted to the Court for consideration, and this
Court having filed its opinion on the 22nd day of July,
1921, and, now, by consent of the parties hereto, the
injunction heretofore granted is hereby made per-
manent, and it is therefore Ordered, Adjudged and
Decreed, and the Court does hereby Order, Adjudge
and Decree that the defendant, its servants, agents,
clerks and attorneys, and all persons claiming or hold-
ing under or through it be and they are hereby per-
petually enjoined from drawing from the fountain for
mixture or sale as Coca-Cola on calls therefor any
other product than the unaltered and unadulterated
syrup made by petitioner and known as Coca-Cola.

It is further Ordered, That the costs be and they
are hereby taxed against the defendant.

This the 17th day of December, 1921.

(Signed) SAMUEL H. SIBLEY,

United States Judge.

— 240 —

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE DISTRICT OF

DELAWARE

269 FEDERAL 796

No. 388— IN EQUITY

COCA-COLA BOTTLING COMPANY, Complainant,

v. '

THE COCA-COLA COMPANY, Defendant.

No. 389— IN EQUITY

THE COCA-COLA BOTTLING COMPANY,

Complainant,

v.
THE COCA-COLA COMPANY, Defendant.

Opinion of HON. HUGH M. MORRIS,
U. S. District Judge.

— 241 —

THE COCA-COLA BOTTLING COMPANY

No. 389— IN EQUITY

THE COCA-COLA BOTTLING COMPANY,
Complainant,

v.
THE COCA-COLA COMPANY, Defendant.

The defendant, The Coca-Cola Company, a Dela-
ware corporation, taking the position that a contract
made between The Coca-Cola Company, a Georgia
corporation, predecessor in title of the defendant, of
the one part, and J. B. Whitehead and B. F. Thomas,
through whom complainant claims, of the other part,
was a contract at will with the right in either party
to terminate the same upon reasonable notice, gave
notice to the complainant that the contract would
4 'stand terminated" on a specified subsequent day.
Thereupon the complainant, denying the contract to
be terminable at the will of either party without the
consent of the other, filed its bill of complaint pray-
ing for an injunction, a decree for specific perform-
ance, and other and general relief. The case is now
before the court upon defendant's motion to dismiss
the bill, under equity rule 29, and also upon complain-
ant's motion for a preliminary injunction as prayed
by the bill. The defendant's motion will be first con-
sidered, and as it must be disposed of solely upon the
allegations of the bill the substance of such allegations

— 242 —

v. THE COCA-COLA COMPANY

so far as deemed material to a proper consider-
ation of this motion will be stated.

The Georgia corporation was organized in 1892 and
became the sole owner of a secret process or formula
under which it manufactured from the time of its or-
ganization until the year 1919 a syrup used in making
a drink which it called Coca-Cola. It also adopted
and used the words "Coca-Cola" as a common law
trade-mark. By the year 1899 the Georgia corpora-
tion had become solely entitled to use the trade-name
and trade-mark "Coca-Cola," Until the latter year
the syrup manufactured by it had been used only as
the base for a drink served at soda fountains for im-
mediate consumption. During that year a contract
was made between J. B. Whitehead and B. F. Thomas,
of the first part, and the Georgia corporation, of the
second part, which, as amended shortly after its exe-
cution, reads (with the exception of the numbers pre-
ceding each paragraph here added for convenience of
reference) so far as material to the issues raised by
the pending motions, as follows:
' ' Georgia,
"Fulton County.

"This agreement made and executed in dupli-
cate this the twenty-first day of July, 1899, be-
tween J. B. Whitehead and B. F. Thomas, of the
first part, and The Coca-Cola Company of the
second part, Witnesseth:

"(1) That the parties of the first part are to
establish in the City of Atlanta, as soon as the
necessary machinery and buildings can be ob-
tained, a Bottling Plant for the purpose of bot-
tling a mixture of Coca-Cola syrup and prepara-
tion with Carbonic Acid and water.

"(2) This plant to be established by said par-
ties of the first part without any expense or lia-
bility of any sort against said party of the second
part.

— 243 —

THE COCA-COLA BOTTLING COMPANY

"(3) Said parties of the first part further
agree to prepare and put up in bottles or other
receptacles, a carbonated drink containing a mix-
ture of the Coca-Cola syrup and water charged
with carbonic acid gas under a pressure of more
than one Atmosphere. Said Coca-Cola syrup and
said water in said mixture to be used in propor-
tions of not less than one ounce of syrup to eight
ounces of water.

"(4) Said parties of the first part further
agree to put up and keep and cause to be kept in
sufficient quantity to supply the demand in all
territory embraced in this agreement, a supply of
this carbonated drink. It is expressly agreed
that if, receiving notice in writing from the said
party of the second part, to <^io so the parties of
the first part shall, not within a period of ninety
days from date of receiving said notice, place and
keep upon sale at the point designated in said
notice, a sufficient stock of such preparation or
mixture to supply the demand therefor, then the
rights herein granted within all the territory
within a radius of one hundred miles of said point
shall be forfeited, and Provided further that a
failure on the part of the parties of the first part
to keep and perform the conditions and provi-
sions herein contained shall work a forfeiture of
their rights hereunder.

"(5) Said parties further agree to buy all of
the Coca-Cola syrup necessary to a compliance
with this agreement at a price and upon terms
set forth below, directly from the party of the
second part.

"(6) The parties of the first part agree not to
use any substitute or substitutes for or other
syrup or substance, nor to attempt to use or imi-
tate with any article made or prepared by them,
Coca-Cola syrup.

— 244 —

v. THE COCA-COLA COMPANY

" (7) Parties of the first part further agree not
to sell or in any way dispose of without the writ-
ten consent of the parties of the second part in
every instance any Coca-Cola except after it is
carbonated and bottled.

"(8) In consideration of these agreements on
the part of the parties of the first part the party
of the second part agrees to sell Coca-Cola syrup
to said parties of the first part at one ($1.00)
Dollar per gallon.

"(13) Said party of the second part further
agrees and hereby grants to said parties of the
first part, the sole and exclusive right to use the
name Coca-Cola and all the trade-marks and de-
signs for labels now owned and controlled by said
party of the second part, upon any bottles or
other receptacles containing the mixture hereto-
fore described, and the right to vend such prepa-
ration or mixture bottled or put up as aforesaid,
in all the territory contained in the boundaries
of the United States of America, except the six
New England States and the States of Missis-
sippi and Texas. This right to use the name
Coca-Cola and the trade-mark and label furnished
is to be applied only to the carbonated mixture
described, and is not intended to interfere in any
way with the business and use of the same as now
operated by the party of the second part, nor to
apply to the soda fountain business as now oper-
ated by various parties. The rights of the parties
of the first part under this contract may be by
them transferred to a company, the formation of
which is now contemplated by them to be known
as the Coca-Cola Bottling Company, but no trans-
fer of their rights under this contract to any
other party or parties, shall be made without the
consent of the party of the second part.

— 245 —

THE COCA-COLA BOTTLING COMPANY

"In Witness Whereof each of the parties has
hereunto affixed their signatures.

"J. B. Whitehead, (L. S.)

"B. F. Thomas, (L. S.)

"The Coca-Cola Company,

"AsaG. Candler, (L. S.)

"Pres."

Coca-Cola Bottling Company, to which Whitehead
and Thomas were authorized by the contract to trans-
fer their rights thereunder, was organized under the
laws of the State of Tennessee in December, 1899.
Whitehead and Thomas conveyed to it all their rights
under the contract and became its principal stock-
holders. Complying with the contract Coco-Cola Bot-
tling Company established a plant in the City of At-
lanta, Georgia, "for the purpose of bottling a mixture
of Coca-Cola syrup and preparation with carbonic
acid and water." It established another at Chatta-
nooga, Tennessee. At each of these plants it com-
menced, at its own expense, the production of carbon-
ated bottled Coca-Cola. The demand for the bottled
product rapidly increased both in volume and as to
territory. The two plants in Atlanta and Chattanooga
were unable to do more than meet the demand in
those two cities and as the contract required that the
increased demand should be supplied new plants were
necessary. At this stage of the business, with the con-
sent of the Georgia corporation, a division was made
of the territory embraced in the contract. Coca-Cola
Bottling Company retained the Chattanooga plant
and certain of the territory, while the Atlanta plant
and the remainder of the territory was acquired by
the complainant, The Coca-Cola Bottling Company.
Each of these bottling companies thereafter pro-
ceeded to carry out in its respective territory all the
provisions of the contract. Within a few years the com-
plainant by the expenditure of much time, money and
energy procured the establishment of many additional

— 246 —

v. THE COCA-COLA COMPANY

plants, now numbering five hundred and eighty-
eight, each supplying a defined area with the bottled
drink. The additional plants were established under
contracts made, with the consent of the Georgia cor-
poration, between the complainant and the owners of
the respective local plants. The value of the physical
properties now held and owned by the local bottlers
in the territory of the complainant is* approximately
ten million five hundred thousand dollars (and in the
territory of Coca-Cola Bottling Company is approxi-
mately ten million dollars) while the value of the
tangible properties of the defendant amounts ap-
proximately to only five million dollars. On April 24,
1915, at which time a very large proportion of the
local plants had been established, the contract above
set out was by mutual consent amended (with the ex-
ception of the numbers prior to each paragraph which
are here added for convenience of reference), thus:

By striking out paragraph 5 and substituting the
following in lieu thereof :

" (5) Party of the first part agrees to buy from
party of the second part such bottlers' syrup as
may be necessary to fully supply said territory
with bottled Coca-Cola; and party of the second
part agrees to manufacture for and sell to party
of the first part all of the Coca-Cola for bottling
purposes that may be necessary for or used by
said first party in supplying said territory with
bottled Coca-Cola."
By substituting the following for paragraph 6:

"(6) In consideration of the consent of The
Coca-Cola Co. to the use of the name Coca-Cola
as a part of the corporate name of party of the
first part, and its further consent to use by first
party of the trade-mark Coca-Cola on the product
so sold, party of the first part agrees not to
manufacture, deal in, sell, offer for sale, use or
handle, nor to attempt to do so, either directly or

— 247 —

THE COCA-COLA BOTTLING COMPANY

indirectly, any product that is a substitute for or
imitation of Coca-Cola."

By striking out paragraphs 8, 11 and 12 and sub-
stituting therefor the following:

" (8) For said syrup so sold, party of first part
agrees to pay party of the second part the sum
of Ninety-two (92c) Cents per gallon. * * *"
By striking from the original contract (with the ex-
ception of the words "except the six New England
States and the States of Mississippi and Texas,"
paragraph 13, and inserting in lieu thereof the fol-
lowing :

"(11) For and in consideration of the agree-
ment to sell and agreement to purchase, party of
the second part does hereby give and convey to
the party of the first part, the right to use the
trade-mark name Coca-Cola, and all labels and
designs pertaining thereto, in connection with the
product bottled Coca-Cola, in the territory here-
tofore obtained by party of the first part, and
agrees not to convey, assign, or transfer the right
of usage of said name in said territory, to any
other party whatsoever; and said party of the
second part further agrees to only manufacture
syrup for bottling purposes in sufficient quanti-
ties to meet the requirements of party of the first
part, and of Coca-Cola Bottling Company, and
for the requirements of the territory not con-
veyed by party of the second part to either of
said companies. Nothing herein, however, shall
give to party of the first part any interest in the
name Coca-Cola, labels, etc., except the right of
usage in connection with bottled Coca-Cola, nor
shall this contract in any way interfere with the
use of said name Coca-Cola, labels, etc., in con-
nection with the fountain product of party of the
second part; it being understood and agreed that
the use herewith given shall be confined to the

— 248 —

v. THE COCA-COLA COMPANY

bottled product, the name, labels, etc., in connec-
tion with the fountain product to be used as party
of the second part deems fit and advisable, in any
and all territory. Party of the second part does
hereby select party of the first part as its sole
and exclusive customer and licensee for the pur-
pose of bottling* Coca-Cola in the territory here-
tofore acquired by said first party, and second
party agrees not to sell its fountain syrup to
anyone, when party of the second part knows that
said syrup is to be used for bottling purposes."
And by adding the following new paragraphs:

"(12) The rights of the party of the first part
under this contract shall not be by it transferred
in part or in whole, without the written consent
of the party of the second part. Transfers here-
tofore made are hereby recognized, and confirmed
by party of the second part.

"(13) Said party of the first part herein hav-
ing heretofore transferred and assigned the bot-
tling rights in portions of the territory leased
and assigned to it, to sub-bottlers, it is under-
stood and agreed by and between the parties
hereto that party of first part shall use its best
endeavors to have the provisions of this Amended
Contract accepted by said sub-bottlers, in so far
as this Amended Contract affects said sub-bot-
lers; but that if party of first part herein is un-
able to obtain the consent of any of such sub-
bottlers to this Amended Contract, this Amended
Contract shall not apply to any of such sub-bot-
tlers refusing to accept this Amended Contract.

"(14) Except As Herein Provided For, the
contract of July 21st, 1899, as amended, shall re-
main in full force and effect; but this Amend-
ment shall only apply to the territory now owned
or controlled by party of the first part, or that
may hereafter be owned or controlled by party

— 249 —

THE COCA-COLA BOTTLING COMPANY

of the first part, and nothing herein contained
shall affect any territorial rig-lit s heretofore con-
veyed, given, transferred or assigned."
The old contracts between the complainant and its
sub-bottlers were after the amendment surrendered
and terminated, and the substituted, as well as all
contracts subsequently made with new sub-bottlers,
were made in a new form. The business of the com-
plainant was at all times conducted without friction
between it and the Georgia corporation, each in good
faith observing the provisions of the contract. The
business of the complainant resulted in very great
profit to the Georgia corporation. Such was the situ-
ation until August, 1919, at which time the defendant,
The Coca-Cola Company, a Delaware corporation, ac-
quired the property, good will jand business of the
Georgia corporation, and assumed all the outstand-
ing contracts and liabilities of that corporation.
Thereafter the Georgia corporation surrendered its
charter. The Delaware corporation elected as its
president, as chairman of its board of directors, and
as its secretary, former officers of the Georgia cor-
poration. It also made the general counsel of the
latter company one of its directors. In the year 1919
the complainant and other persons holding similar
rights from the Georgia corporation under the con-
tract of 1899 were purchasing from the latter com-
pany and marketing as bottled Coca-Cola approxi-
mately forty per cent, of its output of Coca-Cola
syrup to the very great profit of the latter company.
The Delaware corporation, after August, 1919, ap-
plied to the complainant for temporary modifications
of the contract in the matter of the price to be paid
for the syrup on the ground that the war conditions
had so increased its cost of production that the syrup
could not be profitably furnished by it at the contract
price. The complainant on two different occasions
agreed with the Delaware corporation to temporary

— 250 —

v. THE COCA-COLA COMPANY

modifications of the contract by which the price paid
for the syrup to the defendant was greatly increased,
the last temporary modification expiring by its terms
on March 1, 1920. Shortly before the expiration of
the last-named price modification agreement negotia-
tions for a third price modification were about to be
entered into when the complainant for the first time
learned that the defendant had taken the position
that the contract was terminable upon notice at the
will of either party. The complainant thereupon re-
fused to agree to a further modification of the price
of the syrup unless the defendant would likewise
agree at the same time to put forever at rest the
question which it had raised as to the terminability
of the contract. This the defendant refused to do.
Thereupon the complainant, on February 27, 1920,
served upon defendant herein notice that complainant
required compliance with the contract in accordance
with its terms. Replying to such communication the
defendant on March 2, 1920, notified the complainant
and other bottlers holding contracts similar to that of
the plaintiff that the contract would stand terminated
on May 1, 1920.

The bill charges that the contract, including amend-
ments, in and of itself constituted a permanent and
continuing contract, and not a contract terminable at
the will of either party upon notice. The bill also
sets up facts intended to show that the understand-
ing of the parties at the time of making the orig-
inal contract was that the contract was of a per-
manent character and that the subsequent state-
ments and acts of the Georgia corporation were at
all times confirmatory of that understanding. It
is also alleged that the defendant in attempting
to terminate the contract is acting in bad faith
and that the defendant desires to obtain con-
tracts in its own interest with complainant's sub-
bottlers for the purpose of securing for itself the

— 251 —

THE COCA-COLA BOTTLING COMPANY

benefit of the labor, skill and money expended by the
complainant in establishing and developing the bot-
tling business throughout its territory. It is charged
that if defendant be permitted to breach the contract
with complainant the business of the latter will be
annihilated and destroyed to the irreparable injury
of the complainant. The prayers of the bill are, in
substance, (a) that complainant's rights under the
contract be held and decreed to be continuing, perma-
nent and perpetual and not terminable at the will of
either party without the consent of the other; (b) for
specific performance; (c) for an injunction, prelimi-
nary and final, enjoining the defendant from violat-
ing any of the terms and conditions of the contract
and particularly the negative covenants found in
paragraph numbered. 11 of the I amendment of 1915;
and (d) for general relief.

Of the grounds urged by the defendant in support
of its motion to dismiss, those necessary, in the view
I have taken of the case, to be now considered are:
(1) that the contract is a contract at will, terminable
upon reasonable notice; (2) that if perpetual the con-
tract is void under the law of Georgia, the Sherman
Act and the Clayton Act; and (3) that if the com-
plainant acquired any right, title or interest in the
trade-mark, good will or business of the predecessor
of the defendant, the complainant has disposed of all
such rights to its sub-bottlers.

In the motion to dismiss, in the discussion at bar,
and in the voluminous briefs of the respective parties,
numerous other questions have been pressed upon the
attention of the Court, but the pivotal controversy
rests upon the ascertainment of the true meaning of
the contract as amended. A decision upon this matter
will of itself dispose of many questions and render
a consideration of the others, save only (2) and (3)
above stated, unnecessary at this time.

— 252 —

v. THE COCA-COLA COMPANY

In determining the true import of the contract cer-
tain basic rules of construction must be borne in
mind. One of these rules is that when persons put
their contracts in writing the writing must, in the
absence of fraud, accident or mistake, be taken as the
embodiment of their whole engagement and conse-
quently that its terms may not be varied or controlled
by antecedent negotiations or declarations. Bast v.
Bank, 101 U. S. 93, 96; Hanson v. Dayton, 153 Fed.
258, 262; National Bank of Commerce v. Eockefeller,
174 Fed. 22, 26. Another rule is that in the perform-
ance of the duty of ascertaining and giving effect to
the mutual intentions of the parties as expressed in
the contract the court, so far as possible, may and
should put itself in the position of the parties to the
contract and examine into the state of things existing
at the time and the circumstances under which the
contract was made. Canal Company v. Hill, 15 Wall.
94; Gillett v. Bank of Commerce, 106 N. Y. 549, 55
N. E. 292. Courts "are never shut out from the same
light which the parties enjoyed when the contract
was executed." Nash v. Towne, 5 Wall. 689. Still
another settled rule of construction is that the inten-
tions of the parties as expressed in the contract must
be ascertained from the agreement as a whole, from
all its terms considered together, for where a contract
has many provisions it is manifest that the entire in-
tention of the parties was not expressed by any single
stipulation, but by every part so construed as to be
consistent with every other part and with the contract
as a whole. Pressed Steel Car Co. v. Eastern Ry.
Co. of Minnesota, 121 Fed. 609, 611; Elliott on Con-
tracts, Sec. 1514. In applying these principles of in-
terpretation courts should be constantly on guard
lest, unawares, under the guise of construction, and
looking too intently for means of bringing about some
ultimate good, thwarting an apparent wrong, or pre-
venting hardship, a contract other than that made by

— 253 —

THE COCA-COLA BOTTLING COMPANY

the parties be built up. The first of these rules of
interpretation carries one beyond the antecedent dec-
larations and negotiations to the time of the making of
the contract, the then existing condition of the parties
and the surrounding circumstances which under the
second rule, are to be considered.

The Georgia corporation was at the time of the
execution of the contract the sole and exclusive owner
of the secret process or formula under which it had
long been engaged in the manufacture and sale of a
syrup, theretofore used only as a base for a soda
fountain drink that had become known to the public
by the name Coca-Cola. It had acquired a good will.
It was also the sole and exclusive owner of the trade
name and trade-mark. In the secret process the
Georgia corporation had property or property rights
of value that were salable in whole or in part. Fowle
v. Park, 131 U. S. 88. A sale of the process might
have been accompanied by a covenant that the seller
would not thereafter use the process or communicate
it to any other person. Such a covenant would have
been valid and binding. Central Transp. Co. v. Pull-
man's Car Co., 139 U. S. 24, 53. The process was
valuable, however, only because it was a secret and
only so long as it remained a secret. Nims on Unfair
Competition and Trade-Marks (2d Ed.), Sec, 142;
John D. Park & Sons Co. v. Hartman, 153 Fed. 24,
29. In its good will, also, the Georgia corporation
had property or property rights. Good will may be
bought and sold in connection with a business as an
incident thereof. Camden v. Stuart, 144 U. S. 104,
115; Metropolitan Nat. Bank v. St. Louis Dispatch
Co., 36 Fed. 722, 724. The Georgia corporation like-
wise had property or property rights in its trade-
mark. Trade-marks and the good will of a business
are inseparable. In fact a trade-mark is merely one
of the visible mediums by which the good will is iden-
tified, bought and sold and known to the public.

— 254 —

v. THE COCA-COLA COMPANY

Hopkins on Trade-Marks (3d Ed.), page 227; Nims on
Unfair Competition (2d Ed.), Sec. 15. "The trade-
mark is the expression, the symbol, of part or all of
the good will of the business using the mark.
Separate from the good will of the business it identi-
fies, it is useless, valueless; *" Nims on Unfair
Competition, page 378. A trade-mark is not a right
in gross or at large. As an abstract right wholly dis-
associated from the business or merchandise with
which it has become established it is not property and
may not be assigned. United Drug Co. v. Rectanus
Co., 248 U. S. 90. For no one may sell his goods as
the goods of another. Such an act would be a fraud
upon the public. But where the trade-mark of a re-
tailer is assigned by him to the manufacturer of the
commodity to wThich the trade-mark was affixed there
is no false representation to the public and such as-
signment is valid. Witthaus v. Mattfeldt & Co. et al.,
44 Md. 303. The last proposition arises, apparently,
from the fact that a trade-mark does not as a matter
of necessity and law import that the articles upon
which it is used are manufactured by the user. It is
sufficient that they are manufactured for him, that he
controls their production, or that in the course of
trade they pass through his hands. Nelson v. Win-
chell & Co., 203 Mass. 75, 89 N. E. 180; McLean v.
Fleming, 96 U. S. 245, 253. If a retailer may assign
his trade-mark to the manufacturer of the article sold
by the retailer it would seem that the converse is
necessarily true and that the manufacturer may as-
sign his trade-mark to another who sells the goods of
the manufacturer.

The Georgia corporation was not at the time of the
execution of the contract the owner of an actual bot-
tling business, for theretofore it had not actually
bottled the drink Coca-Cola. It was, however, the
sole and exclusive owner of the secret process, was
the sole manufacturer of the syrup made thereunder,

— 255 —

THE COCA-COLA BOTTLING COMPANY

and was the exclusive owner of the trade-mark and
good will. The drink could be bottled. This fact ap-
pears from the contract itself. It follows that the
Georgia corporation, though not then actually en-
gaged in bottling the drink, was the sole owner of all
the rights essential to the bottling and sale thereof as
Coca-Cola. Out of these rights the business of bot-
tling the drink and selling it as Coca-Cola could arise.
Without these rights such business could not be es-
tablished. From these facts it seems clear that at the
time of the execution of the contract the business of
bottling the Coca-Cola and selling it when bottled had
a potential existence; that all rights in the potential
bottling business were owned by the Georgia corpora-
tion, and that such business though potential and not
actual could be sold. Dickey v. Waldo, 97 Mich. 255;
Barron v. San Angelo Nat. Bank,) 138 S. W. 142, 144;
Benjamin on Sales, Sec. 78, 2 R. C. L., Sec. 4, page
596.

Having ascertained the surrounding circumstances
and placed the contract in its original setting, the
next step is to apply to it the above-mentioned third
rule of construction and to search for the meaning of
the contract from the agreement as a whole, from all
its terms considered together, remembering that in a
contract of many provisions the entire intention of
the parties is not expressed by any single stipulation,
but by every part so construed as to be consistent
with every other part and with the contract as a
whole. The complainant contends that the agreement
granted and conveyed or assigned to it the sole and
exclusive right to use in its territory the trade-mark
and trade name upon bottled Coca-Cola ; that this was
a transfer of property or property rights to which
the covenant of the Georgia corporation to manufac-
ture for and to sell to the complainant Coca-Cola
syrup was ancillary and incidental, and that, there-
fore, the contract is not at will but of perpetual

— 256 —

v. THE COCA-COLA COMPANY

duration. The defendant, on the other hand, insists
that the contract was one for the purchase and sale of
Coca-Cola syrup; that the remaining covenants are
ancillary and incidental to the covenants for such
purchase and sale, and that, consequently, the con-
tract, if valid, was a contract at will.

What are the stipulations of the instrument? It
begins with covenants dealing from various aspects
with the establishment of the business "of bottling a
mixture of Coca-Cola syrup and preparation with
carbonic acid and water." Paragraph 1 requires the
establishment in Atlanta by Whitehead and Thomas
of a bottling plant. Paragraph 2 requires that the
plant shall be established without expense to the
Georgia corporation. Paragraph 3 prescribes the
relative proportion of the ingredients of the bottled
drink and the pressure under which the drink is to be
bottled; and paragraph 4 specifies the extent to whicli
the bottling business must be carried on under pen-
alty of forfeiture. Paragraph 5 is a covenant by
Whitehead and Thomas to buy all syrup "necessary
to a compliance" with the agreement directly from
the Georgia corporation. Paragraph 6 prohibits the
use by the bottlers of imitations and substitutes for
the Coca-Cola syrup, and 7 is a covenant of the
bottlers not to sell Coca-Cola "except after it is car-
bonated and bottled." In consideration of the fore-
going stipulations of the bottlers, the Georgia cor-
poration in paragraph 3 agreed to sell Coca-Cola
syrup to the bottlers at a fixed price, and by para-
graph 13 it "grants" to the bottlers "the sole and
exclusive right to use the name Coca-Cola and all the
trade-marks and designs for labels now owned and con-
trolled by" the Georgia corporation "upon any bot-
tles or other receptacles containing the mixture '
described," and the right to sell the same in the pre-
scribed territory. The amendment of 1915, as I un-
derstand that amendment, makes no substantial

— 257 —

THE COCA-COLA BOTTLING COMPANY

change in the above-stated provisions save in the
price to be paid for the syrup. Otherwise, it is, in
substance, only an expression of what was expressed
in or necessarily implied from the original contract.
I am not overlooking that part of paragraph 11 of
the amendment, which says: "Party of the second
part (the Georgia corporation) does hereby select
party of the first part (the complainant) as its sole
and exclusive customer and licensee for the purpose
of bottling Coca-Cola in the territory heretofore ac-
quired by said first party/' This clause did not, how-
ever, in my view of the contract as a whole, either
diminish the rights of the complainant obtained
through the original contract or enlarge them.

What was the paramount purpose of the contract
as ascertained from the agreement as a whole? In my
opinion it was the establishment; of the business of
bottling the Coca-Cola drink by Whitehead and
Thomas. As I understand the contract the rights in
good will and trade-mark name acquired under the
contract by the bottlers were the same in character
and as permanent as if the Georgia corporation had
sold to them an established bottling business with its
trade-marks and good will. A contract merely for the
purchase and sale of syrup would not be a repository
for covenants making obligatory on the part of the
purchaser the establishment of bottling plants having
a capacity sufficient to supply the greater part of the
nation and restricting the re-sale of the syrup "ex-
cept after it is carbonated and bottled," nor would it
be a repository for a grant of the sole and exclusive
right to use the trade-mark of the vendor, not upon
the syrup, but upon the product of those bottling
plants. I find nothing in the contract or the circum-
stances attending its making to indicate that these
covenants are subordinate or incidental to the cove-
nant for the purchase and sale of syrup. On the
other hand, the contract and the surrounding

— 258 —

v. THE COCA-COLA COMPANY

circumstances show that such covenants and the cove-
nants to purchase and sell syrup are co-ordinate and
of equal rank. A contract so constituted shows an
essential object and purpose immeasurably broader
than the mere purchase and sale of syrup. Its real
purpose neither lies in nor is revealed by any single
covenant or provision, but is evinced by the result
obtained by combining all the covenants. That result
is the sale and purchase of a potential business and
the establishment of an actual business. This result
is the whole of which such covenant is merely a part.
To this whole each covenant, when separately con-
sidered, is ancillary and incidental. In the transac-
tion property rights passed from the Georgia cor-
poration to the bottlers. The forfeiture clauses are
also more in keeping with this conclusion, for while
of themselves they may be an insufficient foundation
upon which to base a conclusion that the contract
does pass property or property rights, or is not a
contract at will, yet it is manifest that in a contract
passing property rights or in a contract not at will
forfeiture clauses have a greater utility. A sufficient
consideration for this sale is the establishment by the
purchaser of the plant or plants requisite to supply
the demand of the specified territory. This has been
done. The method and means by which these plants
(other than the Atlanta plant which was established
in conformity with the contract) have been estab-
lished is no concern of the defendant and is irrele-
vant to the question as to the character and duration
of the contract. The value of the tangible assets of
the plants (aggregating in the territory covered by
the original contract upwards of twenty million dol-
lars) necessary to comply with the covenants of the
fourth paragraph of the contract may, however, be
relevant to the question of duration of the contract
as showing an improbability that it was the intention
of the parties that the continuance of a business of

— 259 —

THE COCA-COLA BOTTLING COMPANY

such magnitude requiring for its establishment such
an enormous outlay of capital should be dependent
upon the arbitrary will of any one party. It is rea-
sonable to infer that in building up a bottling busi-
ness "to supply the demand in all territory embraced
in the agreement," AYhitehead and Thomas desired
to build that business upon a sound business founda-
tion, otherwise the agreement could have been limited
to a contract for the purchase and sale of syrup. But
it was not so limited. To build upon a firm business
basis Whitehead and Thomas needed all rights of the
Georgia corporation in its potential bottling business
for the specified territory. Had the Georgia corpora-
tion at the time of making the contract been the
owner of an actually established business of bottling
the Coca-Cola drink the language of transfer might
aptly have been somewhat different from that used
by the parties in the contract under consideration,
but the bottling business not having been actually
established by the Georgia corporation, and it being
merely the owner of rights which gave to the bottling
business only a potential existence, the language em-
ployed seems appropriate and fitting for the purpose
of divesting the Georgia corporation of all rights that
it had to convert the potential business into an actual
business, and likewise to clothe Whitehead and
Thomas with such rights. The secret process or
formula having a value only so long as it should be
kept secret and the probability of its public disclosure
increasing with the increase in the number of persons
to whom it might become known by disclosures in the
course of business, the Georgia corporation probably
eliminated from consideration any question of an as-
signment of the secret process or formula to White-
head and Thomas for use by them to the extent of
their business needs in the manufacture of Coca-Cola
syrup for bottling purposes. Had it adopted this
method it could have sold, either for a consideration

— 200 —

v. THE COCA-COLA COMPANY

then paid or upon a royalty basis, the secret process
for use in making Coca-Cola syrup for bottling pur-
poses. Such a sale could have been accompanied, as
appears from the authorities hereinbefore referred
to, by a covenant preventing the future use of the
formula for making the syrup for bottling purposes
by the Georgia corporation,, its successors and as-
signs, and by a grant of the sole and exclusive right
to use the trade-mark and trade-name upon the bot-
tled product in the prescribed territory. Such a sale
would have carried with it all rights of the Georgia
corporation in the potential bottling business. This
method was, however, not adopted by the parties, for
the Georgia corporation retained the secret and con-
sequently the legal title thereto. The owner of such
potential business could, however, by contract based
upon a valuable consideration, and without the sale
of the process, confer upon a vendee all rights which
it, the vendor, might have in such business. This
could be accomplished by the grant of the use of the
trade-mark and trade name accompanied by an agree-
ment to sell to the vendee such syrup made under the
formula as might be necessary to fully supply with
bottled Coca-Cola the demand of the territory ac-
quired by the vendee, embodying covenants that it
would thereafter manufacture under the secret for-
mula syrup for bottling purposes only in sufficient
quantities to meet the demand of the vendee's terri-
tory and that it would not sell its fountain syrup to
anyone when the vendee " knows that said syrup is
to be used for bottling purposes." Such an agree-
ment the Georgia corporation, by the contract under
consideration, made. Thereby it conferred upon the
bottlers the right to acquire the syrup and it trans-
ferred to them an interest in its good will and trade-
mark and trade name, the cumulative effect of which
was the transfer of the potential bottling business.
The right to transfer the good will is clear. The

— 261 —

THE COCA-COLA BOTTLING COMPANY

Georgia corporation had acquired a good will and a
trade-mark arising out of and connected with the
fountain drink. It is to be assumed that the bottled
drink and the fountain drink were substantially iden-
tical, the bottled drink, by reason of its being bottled,
being merely more available for general use. Neces-
sarily the favor which the Georgia corporation had
won from the public for its fountain drink would, at
least in part, inure to the advantage of the bottled
drink should the latter be labeled so as to identify it
with the fountain drink. The Georgia corporation
consented to this labeling and granted and conveyed
to the bottlers "the right to use the trade-mark name
Coca-Cola, and all labels and designs pertaining
thereto, in connection with the product bottled Coca-
Cola" in the prescribed territory. The extent of the
good will, symbolized by the trade-mark, so trans-
ferred is disclosed by the grant of the "sole and ex-
clusive" right thus to use the name and trade-mark,
or, as expressed in the amendment, by the negative
covenants of the Georgia corporation that it will
"only manufacture syrup for bottling purpose in
sufficient quantities to meet the requirements" of
complainant and others holding similar rights under
the contract and that it will not sell its fountain
syrup to anyone when the complainant "knows that
said syrup is to be used for bottling purposes." The
good will so transferred was, as to the bottling busi-
ness, perpetual and exclusive. The transfer of the
interest in the trade-mark was not a transfer in
gross. The right to transfer the good will and trade-
mark under such circumstances is shown by the au-
thorities hereinbefore referred to. As I see it, it is
immaterial whether the interest in the trade-mark ac-
quired by the bottlers was a legal title or merely a
beneficial interest. Though not made the basis of the
decision upon this matter, it may be noted that the
defendant does not dispute the right of complainant

— 262 —

v. THE COCA-COLA COMPANY

to use the trade-mark during the continuance of the
contract. Consequently the ultimate question touch-
ing the trade-mark would thus seem to be, not
whether the trade-mark could be assigned, but merely
the extent of the interest assigned. If a limited in-
terest therein by way of license could have been as-
signed no reason appears why, under the circum-
stances, an unlimited interest could not likewise have
been assigned. In view of the use of the word
" grants," denoting a transfer of property, in the
original contract, and the significance in the use of
the words "give and convey," being of like import
with the word "grants," in the amendment fifteen
years later, to confer upon the plaintiff or its prede-
cessors in interest the right of user, in the absence of
words of limitation and in the light of the fact that
the essential object and purpose of the contract was
the building up of the bottling business at much ex-
pense adequately to meet the contractual provisions,
I am unable to find any sound principle upon which
to base a conclusion that the right so conveyed was
other than an absolute and unlimited right of user in
the complainant to the exclusion of all others, includ-
ing the Georgia corporation, its successors and as-
signs, in the territory in question. In fact, the Su-
preme Court has held that "If the owner (of a trade-
mark) imposes no limitation of time (upon
the right to use the trade-mark) the right to use is
deemed perpetual." Kidd v. Johnson, 100
U. S. 617, 619.

Did the contract confer upon the bottlers a right to
acquire from the Georgia corporation the Coca-Cola
syrup necessary to the establishment and conduct of
the bottling business? Paragraph 5 of the amendment
of 1915 provides :

"Party of the first part (the bottler) agrees to
buy from party of the second part (the Georgia
corporation) such bottlers' syrup as may be

— 263 —

THE COCA-COLA BOTTLING COMPANY

necessary to fully supply said territory with
bottled Coca-Cola; and party of the second part
agrees to manufacture for and sell to party of the
first part all of the Coca-Cola for bottling pur-
poses that may be necessary for or used by said
first party in supplying said territory with bot-
tled Coca-Cola. "

The defendant, regarding the contract as one
merely for the purchase and sale of syrup, insists
that it is so lacking in mutuality of obligation and so
indefinite as to time and subject matter as to be void.
Having concluded that the covenant to sell syrup is
not the dominant covenant of the contract to which
all others are incidental and subordinate, but that it
is merely one of a number of co-ordinate covenants,
the objections as to mutuality apid certainty become
of less importance, yet they are not wholly eliminated.
The objection that there is a lack of mutuality is
based upon the assumption that the only considera-
tion for the promise to sell the syrup is the reciprocal
promise to buy. This assumption is not well founded.
The express covenant on the part of the bottlers to
erect a bottling plant and their implied covenant to
erect or cause to be erected bottling plants sufficient
to supply the demand of the territory with the bottled
drink, both of which have been performed, constitute
sufficient consideration for the covenants of the
Georgia corporation. Consideration has been defined
as "the price, motive, or matter of inducement to a
contract, whether it be the compensation which is
paid, or the inconvenience which is suffered by the
party from whom it proceeds," and again, as "any
act of the plaintiff from which the defendant or a
stranger derives a benefit or advantage, or any labor,
detriment, or inconvenience sustained by the plaintiff,
however small, if such act is performed or incon-
venience suffered by the plaintiff by the consent, ex-
pressed or implied, of the defendant." Bouvier's

— 264 —

v. THE COCA-COLA COMPANY

Dictionary, Kawle's 3d Rev. The Atlanta bottling
plant was built and the remaining five hundred and
eighty-seven plants in complainant's territory have
been built, equipped and operated without expense
to the Georgia corporation or the defendant. That
the plants are not now owned by the complainant is
a fact irrelevant to the matter under discussion.
"Want of mutuality is no defense to either party,
except in cases of executory contracts." Grove v.
Hodges, 55 Pa. 504, 516; Chicago, M. & St. P. Ry. Co.
of Idaho v. United States, 218 Fed. 288, 301. In Wil-
son v. Clonbrock Steam Boiler Co., 105 Fed. 846,
Judge MCPHERSON, quoting from Morse v. Bellows, 7
N. H. 549, said:

"Nor is it necessary that the consideration
should exist at the time of making the promise;
for if the person to whom a promise is made
should incur any loss, expense, or liability in
consequence of the promise, and relying upon it,
the promise thereupon becomes obligatory."
The contract is not wanting in mutuality of obliga-
tion. Has it sufficient certainty as to subject matter
and time of performance? When the provisions of
paragraphs 4 and 5 of the agreement as amended in
1915 are read together it is clear that the bottler is
bound to buy and the manufacturer of the syrup is
bound to manufacture and sell to the bottler, not
merely such syrup as the bottler may desire, but suf-
ficient syrup to enable the bottler to supply the de-
mand for the bottled drink in all territory embraced
in the agreement. Manifestly the agreement is not
of that class where the amount of the commodity to
be furnished depends upon the wish, will or desire of
either party. A contract to furnish goods, material
or other commodity sufficient for the needs of a speci-
fied undertaking is not invalid for uncertainty. Select
Pictures Corporation v. Australasian Films, 260 Fed.
296; Lima Locomotive & M. Co. v. National Steel C.

— 265 —

THE COCA-COLA BOTTLING COMPANY

Co., 155 Fed. 77. Mere indefiniteness as to the exact
amount of material to be purchased or sold under a
contract is not necessarily a fatal uncertainty. Elliott
on Contracts, Sec. 180. If the intention of the con-
tract be clear the mere uncertainty as to the exact
amount involved does not invalidate it. Barney Lum-
ber Co. v. John Schroeder Lumber Co., 237 Fed. 39.
The manifest intention of the parties to the contract
under consideration was that the demand of the
granted territory for the bottled drink should be sup-
plied. The exact quantity of syrup necessary to sup-
ply this demand could not in the very nature of things
have been fixed at a specified number of gallons. A
provision in the contract so fixing the quantity of
syrup to be sold and purchased would not have been
in keeping with the dominant intention of the parties.
Having in mind the paramount object of the parties
to the contract, it is difficult to find a measure of sup-
ply more suitable to the purposes of the contract or
more definite than that employed by the parties them-
selves. That the quantity of syrup to be supplied was
sufficiently definite for the purposes of the contract
to enable the parties thereto to comply therewith has
been fully demonstrated by a practical test of twenty
years duration. Furthermore, as the business con-
tinued from year to year and the extent of the de-
mand for the bottled drink became known such
uncertainty as originally existed in the contract nec-
essarily in large measure disappeared. It should be
observed that the Georgia corporation, and not the
bottlers, fixed the standard by which the supply was
to be measured, and that this was the same standard
under which the bottler was required to establish or
cause to be established, under penalty of forfeiture
of all contractual rights, bottling plants adequate to
manufacture the bottled drink in quantity sufficient
to supply the demand of all territory embraced in the
agreement. Much stress has been laid by the defendant

— 260 —

v. THE COCA-COLA COMPANY

upon the case of McCaw Mfg. Co. v. Felder, 115
Ga. 408, but that case involved a contract of a char-
acter radically different from the contract under con-
sideration. Yet that and similar cases cited by the
defendant required only that the contract be suffi-
ciently definite, which necessarily means sufficiently
definite under all the circumstances of the contract,
having in mind its essential object and purposes.
The contract is sufficiently definite as to subject mat-
ter. Is it sufficiently definite as to time! This point
was made but scarcely pressed, for the defendant
made its real defense upon the ground that the con-
tract was a contract at will — a position inconsistent
with that of a lack of certainty as to time. But aside
from the inconsistent attitude of the defendant is it
possible to say how long the covenant to supply syrup
runs? Though essential to the contract this covenant
is but incidental to its main purpose. As the business
established upon the faith of the contract could not
continue without syrup, the period for which the
syrup must be supplied is found by ascertaining the
duration of the contract. From what has already
been said it appears that the contract is not a con-
tract at will, but that it is a contract permanent, and
perpetual in its nature. Manners v. Morosco, 252
IT. S. - -; Western Union Telegraph Co. v. Pennsyl-
vania Co., 129 Fed. 849, 858. The bottling business
rests upon the joint existence of two things — the con-
tinued secrecy of the process for making the syrup
and the continued demand for the bottled drink. So
long as both of these conditions exist the contract
endures. The fact that no plan was provided for in
the contract for changing the price to be paid for the
syrup does not alter this result. It may well be that
the price so fixed embraced such a large margin of
profit that a fluctuating scale of prices was deamed
unnecessary.

It is next contended by the defendant that if the

— 207 —

THE COCA-COLA BOTTLING COMPANY

contract be construed as it is now construed by the
Court it is void under the law of Georgia, the Sher-
man Act and the Clayton Act. In this connection it
should be observed that the effect of the contract was
not a merger or consolidation of businesses theretofore
existing in severality, but was the complete severance
of the bottling business from the business of supply-
ing soda fountains with the syrup, while the result
which the defendant seeks under statutes intended to
prevent monopoly would give to the defendant a com-
plete and exclusive monopoly of both the fountain
business and the bottling business. The accomplish-
ment of this result through the instrumentality of the
anti-monopoly statutes would, indeed, be unique. That
of necessity there is competition between the bottled
drink and the fountain drink cannot be seriously
questioned. The contract did not fix a price for the
bottled drink. It did not fix a price for the fountain
drink. The defendant may sell its fountain syrup for
such price as it pleases subject to the inevitable re-
sult, if it raises its price too high, that the demand
for the fountain drink will decrease and that for the
bottled drink increase. The converse would, of course,
be true should the price of the bottled drink greatly
exceed that of the fountain drink. The defendant
points out certain covenants of paragraphs 6, 7, 11
and 12 of the contract as amended in 1915 to show
that the contract is in restraint of trade. It cites
Floding v. Floding, 137 Ga. 531, 73 S. E. 729, and
other cases, to show that the courts of Georgia re-
fuse to recognize an agreement not to operate the
same business in a territory very large in area as
being in reasonable restraint of trade. But such
cases have no analogy to the case at bar, where the
effect of the contract was not to transfer the whole
business of the vendor, but only an incidental and
potential business arising out of the main business of
the vendor. It is unnecessary to analyze the several

— 268 —

v. THE COCA-COLA COMPANY

covenants pointed out as being in unreasonable re-
straint of trade. Those covenants at most operate as
a partial and not as a general restraint and are
" merely ancillary to the main purpose of a lawful
contract, and necessary to protect the covenantee in
the enjoyment of the legitimate fruits of the contract,
or to protect him from the dangers of an unjust use
of those fruits by the other party," or were covenants
necessary to protect the Georgia corporation in its
retained business. Such provisions are valid. United
States v. Addyston Pipe & Steel Co., 85 Fed. 271;
John D. Park & Sons Co. v. Hartman, 153 Fed. 24.
I find in the contract nothing having an effect or
intended to have an effect to defeat or lessen com-
petition or to encourage or tend to create a monopoly,
nor do I find anything therein that may be said to
be in unreasonable restraint of trade.

The defendant has also suggested, rather than
urged, that even if the complainant acquired any
right, title or interest in the trade-mark, good will
or business of the predecessor of the defendant, the
complainant has disposed of all such rights to its sub-
bottlers. This objection is based upon the provisions
of the contract between the complainant and its five
hundred and eighty-eight sub-bottlers, each of such
contracts so far as disclosed being in the same form.
Under those contracts the bottler conveyed to the
sub-bottler the right the former " received from The
Coca-Cola Company to use the trade-mark name
Coca-Cola, and all labels and designs pertaining
thereto in connection with the product bottled Coca-
Cola" in the territory of the sub-bottler. The bottler
agreed to obtain and furnish to the sub-bottler at
$1.20 per gallon sufficient syrup for bottling purposes
to meet the requirements of the sub-bottler in his
specified territory. The sub-bottler agreed, in sub-
stance, to buy of or through the bottler at the
specified price all syrup required or used by the

— 269 —

THE COCA-COLA BOTTLING COMPANY

sub-bottler; to invest in and maintain a plant and
equipment sufficient to meet the demands of. the busi-
ness in its territory ; to allow the bottler to enter upon
ami examine the premises where the Coca-Cola 'should
be bottled and prepared for market; and to allow the
bottler to make any necessary examination to see that
the provisions of the contract were complied with.
It was further agreed that so long as the sub-bottler
should comply with the terms of its contract the
rights, privileges and immunities thereby granted to
the sub-bottler should remain in full force and effect.
The obligations imposed upon the complainant by its
contract with the Georgia corporation still rested
upon the former, notwithstanding its contracts with
the sub-bottlers. The complainant also retained a
beneficial interest in the bottling business after mak-
ing the contracts with its sub-bottlers. Whether the
interest so retained makes The Coca-Cola Bottling
Company "the real party in interest ' within the
contemplation of Equity Rule 37 is a question that
need not now be determined, for some of the sub-
bottlers, on behalf of themselves and all other sub-
bottlers to whom defendant contends the complainant
has sold all its interest in the business, good will
and trade-mark, have been granted leave to intervene,
reserving to the defendant the right to raise any
question with respect to such intervention. The right
of the sub-bottlers so to intervene is supported by
Osborne v. Wisconsin Cent. R. Co., 43 Fed. 824, and
Prentice v. Duluth Storage & Forwarding Co., 58
Fed. 437. In the former case Mr. Justice Harlan,
sitting at circuit, held that "where a number of per-
sons have separate and individual claims and rights
of action against the same party, but all arise from
some common cause, are governed by the same legal
rule, and involve similar facts, and the whole matter
might be settled in a single suit brought by all of
these persons uniting as co-plaintiffs, or one of the

— 270 —

v. THE COCA-COLA COMPANY

persons suing on behalf of the others, or even by one
person suing for himself alone" one or more may
sue for the whole. In the latter case Judge Sanborn,
speaking for the Circuit Court of Appeals for the
Eighth Circuit, said:

* ' That this suit was well and wisely brought
admits of no discussion. Owners of lots in severalty
in possession under a common source of title
may join in ' a bill of peace to quiet their
title the validity of which depends en-

tirely upon the superiority of the title of their
common grantor. The law and the facts which
determine the validity of the title of one such
owner also determine validity of the title of
every such owner. While they are owners in
severalty, they are united in interest in the sole
question at issue in such a case — the validity of
the title of their common grantor. A suit based
upon such a bill is of general equitable cognizance.
It prevents a multiplicity of suits, and affords the
only adequate remedy for such a multitude of sev-
eral owners when their common source of
title is assailed."

It is also provided by Equity Rule 37 that ' ' all
persons having an interest in the subject of the action
and in obtaining the relief demanded may join as
plaintiffs. Both The Coca-Cola Bottling

Company and the sub-bottlers have an interest in the
subject of the action and in obtaining the relief de-
manded by the bill of complaint. The objection of
the defendant to the intervention of the sub-bottlers
cannot be sustained. It follows that all persons hav-
ing an interest in the subject of the action and in
obtaining the relief demanded are now before the
court seeking its aid in protecting the business,
good will and trade-mark rights, granted and con-
veyed by the contract of 1899 as amended in 1915,
from violation by the defendant. It, therefore,

— 271 —

THE COCA-COLA BOTTLING COMPANY

becomes unnecessary now to determine the relative
rights of such persons.

Inasmuch as it appears from the bill of complaint
that the contract of 1899 granted and conveyed prop-
erty rights in and to a business, good will and trade-
mark, and inasmuch as it also appears that such con-
tract was valid, that it was not a contract at will, that
all persons having any interest therein are before the
court, and that the defendant is 'threatening to in-
fringe those rights, the motion to dismiss the bill
of complaint must be denied. Trade-mark Cases,
100 U. S. 82, and as to good will, 12 R. C. L., page
988.

The complainant's motion for preliminary injunc-
tion remains to be considered, but as the numerous
affidavits and voluminous documentary exhibits filed
in support of and in opposition to this motion cast
no doubt upon any of the facts upon which the denial
of defendant's motion to dismiss the bill of complaint
is based it follows, without further consideration, that
the complainant is entitled to a preliminary injunc-
tion enjoining and restraining the defendant from in-
fringing the property rights in good will and trade-
mark granted and conveyed by the contract of 1899
as amended. As an injunction so limited may tend to
bring about a result fair and just to all parties I
deem it unnecessary now to consider whether the com-
plainant is entitled to a decree, absolute or upon
terms, directing compliance with the covenant of the
owner of the secret process to manufacture for and
sell to the bottler all of the Coca-Cola syrup for
bottling purposes that may be necessary for or used
by the bottler in supplying the prescribed territory,
and consequently consideration of that matter will
be deferred until final hearing, unless the complain-
ant shall in the meantime find that an earlier deter-
mination is essential for its protection and renew its
application for a mandatory injunction.

— 272 —

v. THE COCA-COLA COMPANY

An order denying the motion of the defendant to
dismiss the bill of complaint, and a decree for a pre-
liminary injunction in accordance with this opinion
may be submitted.

(Sgd.) HUGH M. MOKBIS, J.
November 8, 1920.

— 273

COCA-COLA BOTTLING COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT

OF DELAWARE

No. 388— IN EQUITY

COCA-COLA BOTTLING COMPANY, Complainant,

v.
THE COCA-COLA COMPANY, Defendant.

This case presents the same questions of law, un-
der the same facts, as those already decided in No.
389, save only that the rights of the complainant are
for a different territory, and also that in the contracts
of the complainant with its snb-bot tiers the rights of
the sub-bottlers were limited to a specified term which
is about to expire, no objection was raised to the right
of the complainant to maintain the suit, and no sub-
bottlers intervened.

For the reasons stated in the opinion in No. 389 a
like order and decree may be submitted.

(Sgd.) HUGH M. MORRIS, J.
November 8, 1920.

— 274 —

v. THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT

OF DELAWARE

No. 388— IN EQUITY

THE COCA-COLA BOTTLING COMPANY, et aL,

Plaintiffs,
v.
THE COCA-COLA COMPANY, Defendant.

It appearing to the Court that the above stated
cause is now ripe for final decree; that the parties
thereto, including all of the Intervenors actually in-
tervening in said cause, have entered into an agree-
ment settling and compromising said case and all
questions of difference thereon arising, an original
signed copy of which contract has been exhibited to
the Court and a true and correct copy of which is
hereto attached as Exhibit 1, and Counsel represent-
ing the several parties to said cause moving the Court
to make said Agreement of compromise and settle-
ment the decree of the Court in said cause, and all
parties in open court consenting thereto ;

It is Ordered, Adjudged and Decreed, That said
agreement of settlement and compromise, as the same
appears attached hereto as Exhibit 1, be and the same
is made the decree of this Court ; and that it is so

' »

accordingly Adjudged and Decreed by the Court.
That all previous orders in this case are revoked.
That all costs in the cause not heretofore paid are
taxed equally against the plaintiff and the defendant,
one-half to each.

In open Court this 5th day of October, 1921.

HUGH M. MORRIS,
Judge, U. S. District Court.
— 275 —

COCA-COLA BOTTLING COMPANY

We consent to the foregoing decree :

Spcdding, MacDougald & Sibley,
Rosser, Slaton, Phillips & Hopkins,
Chas. T. & Jno. L. Hopkins,
Ward, Gray & Neary,
Brown, Spurlock & Brown,
Plaintiff's Attorneys.

W. D. Thomson,
Clifford L. Anderson,
Robt. C. Alston,
Adams & Adams,
William S. Hilles,
Robert H. Richards,

Defendant 's Attorneys.

J. B. Sizer,

Intervenors' Attorney.

(NOTE. — This case was appealed to the Court of Ap-
peals of the Third Circuit, but before decision the case
was settled between the parties.)

— 276 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF KENTUCKY

No. 807— SEPTEMBER 23, 1916

THE COCA-COLA COMPANY

v.
THE LEONARD HOTEL COMPANY.

This cause is before me for final decree. The plain-
tiff is the manufacturer and seller of the well-known
drink, Coca-Cola, The defendant owns and operates
a hotel in Lexington, Ky., and in connection there-
with a bar. At that bar it sells a drink similar
in appearance and taste to plaintiff's article, known
as My Coca, manufactured and sold by a concern in
which defendant's proprietor and manager is the
largest stockholder. The defendant had for a num-
ber of years sold Coca-Cola, but three or four years
ago ceased to do so and ever since then it has sold
My Coca, The complaint made against it by the bill
herein, which was filed October 7th, 1915, was that
it was selling My Coca as and for Coca-Cola to cus-
tomers calling for Coca-Cola, and the relief sought
was an injunction against a continuance of such
selling.

That such selling is a wrong to plaintiff and en-
joinable is well settled. That it has been so doing
before the bringing of the suit is beyond question.
Plaintiff's detective, Ross, testifies to sales on three
separate occasions on March 4th, 1915, on four on
March 5th, 1915, and on two on June 9th, 1915, on

— 277 —

THE COCA-COLA COMPANY

two on June llth, 1915, and on one on June 14th,
1915. As to one of the sales on March 4th, Ross is
corroborated by the testimony of one of plaintiff's
traveling salesmen, and as to the sales in June, by
the testimony of two persons employed by him to
assist in his detective work. The Special Commis-
sioner, who saw these witnesses and heard them tes-
tify, finds that their testimony is "absolutely true,"
notwithstanding the denial of defendant's bartenders.
That they were engaged in detective work does not
weaken their testimony, especially in view of the
fact that there was no desire to involve defendant
in a lawsuit, as shown by the fact that, after the
sales in March, defendant's attention was called to
the matter, with a request that such sales cease.
Had this notice and request been heeded there would
have been no lawsuit. I

This testimony is corroborated by certain of de-
fendant's witnesses. Their testimony not only had
this effect, but it tended to establish other such sales ;
indeed, it tended to establish that it. was the custom
before this suit was brought to make such sales,
whenever opportunity afforded. H. C. Deering was
an employe of defendant. He worked at the cigar
stand in front of the bar, with a partition between
them. He had so worked for two years. He fre-
quently went into the bar. He testified that he had
observed that when Coca-Cola was asked for the
bartender explained that they did not handle Coca-
Cola, but did handle My Coca. When asked as to
when his attention was first called to this, he first
said that it was in the last five months. He then
said that, it was in three or four or five months,
then that he would not say that it was in six months,
but in about three or four months, and then, that he
had not noticed it prior to four or five months. Kit
Blevins, a barber, worked in the hotel barber shop.
He had worked there some time previously to June,
1915, but continuously since that time. He went into

— 278 —

v. THE LEQNABD HOTEL COMPANY

the bar regularly, or most every day. Before then
he had been in there off and on for over three or
four years. He had observed the same thing that
Deering had when Coca-Cola was called for. When
asked when this first happened, he said that he did
not remember any further back than that it hap-
pened within the last six or eight months. Further
on he testified that recently when he called for Coca-
Cola they would make the explanation, and when
asked how recently, he said in the last five or six
months back — that it had become a joke between
him and the bartenders because of this suit. Ollie
S. Honaker, a florist, was a patron of defendant's
bar. He had been so regularly for two years. When
he called for Coca-Cola he was told that they did
not have Coca-Cola, but had My Coca. He was asked
as to how long ago this had happened, and he said
that it had been six months, in the last six months;
that was as near as he could state, but it was prob-
ably longer; that he did not think that it was any
less time than this, but he supposed, if anything,
it was longer.

J. J. McGurk, a confectioner, was a patron also of
defendant's bar. He was there on an average once
a day. He sold Coca-Cola himself, and hence never
asked for it there. He had, however, on a good many
occasions, observed others call for it, and the expla-
nation heretofore referred to given. He first said
that he had noticed this during the last six months
or eight months, and then that he had heard it within
the last six months and possibly previously to that,
but could not say positively.

The implication of the testimony of these four
witnesses was that, before they had observed that
such explanation was given, My Coca was furnished
when Coca-Cola was called for, without explanation,
i. e., that it was sold as and for Coca-Cola. They
vary slightly as to the time when they first observed
this, Deering putting the time shorter than the other

— 279 —

THE COCA-COLA COMPANY

three. They testified on February 3rd, 1916. This
suit was brought October 7th, 1915, nearly four
months before. The estimates as to the time were
approximate only. The reasonable conclusion is that
the time when they first observed this was at the
bringing of this suit. Blevins testifies that the call-
ing for Coca-Cola by him and the explanation given
by the bartender was a joke between them because
of the bringing of the suit. The unreliability of
McGurk's testimony estimating the time is shown
by the fact that he testified that a sign which de-
fendant had placed in the bar informing customers
that it did not sell Coca-Cola, but sold My Coca, had
been up longer than he had observed the explana-
tion given by the bartenders. The sign had been
put up after November 12th, 1915.

The testimony of other witnesses than these four,
outside of the bartenders, introduced by defendant
is not sufficient to make out a different state of fact.
When they testified defendant's bartenders had, no
doubt, for nearly four months, at least, been quite
regularly explaining that the article which they sold
was My Coca and not Coca-Cola. The questions put
to them covered this time. They were not limited
to the time before the suit was brought. In giving
estimates as to how long they had observed this they
could readily fall into error. How readily they could
do so is shown by the fact that one or two of them
estimated that the sign which, then, had not been
up for as much as three months, had been as much
as, or over, a year.

Besides this evidencee covering the time before the
bringing of this suit, it was testified to by plaintiff's
detective that after it was brought, to wit, on De-
cember 21st, defendant's head bartender sold him My
Coca as and for Coca-Cola, and his testimony was
corroborated by a disinterested witness. This tes-
timony the Special Master also finds to have been
"absolutely" true.

— 280 —

v. THE LEQNAED HOTEL COMPANY

Apart from the denials on the part of defendant's
bartenders as to their making such sales, the sole
defense is that such sales, if made, were contrary
to the instructions of the defendant's proprietor, Mr.
Shouse, and it. was innocent of any intent to appro-
priate plaintiff's business. The Special Master finds
that such sales as are shown by plaintiff's evidence
to have been made without explanation ''were made
against the proprietor's and manager's direct instruc-
tions and without his knowledge or consent or ap-
proval and were made through carelessness and in-
advertence and without any intention whatever to
deceive the public or to wrong the complainant."
I do not find it necessary to go into the question
as to the correctness of the finding. Accepting it
as correct, it is not a good defense to plaintiff's right
to relief. The bartenders were defendant's repre-
sentatives, and it is responsible for their action. It
is a matter of common knowledge that the demand
for such drinks as Coca-Cola, My Coca and the like
was created by plaintiff's article. My Coca resembles
it in appearance and taste. The persons to whom
defendant sold My Coca when Coca-Cola was called
for were plaintiff's customers, i. e., persons desiring
plaintiff's article. It availed itself of the opportunity
presented by the call for Coca-Cola to sell its ar-
ticles in its stead, and that even though full expla-
nations were made, which it had the right, to do.
This condition of things called for its seeing to it
that its bartenders did not sell My Coca as and for
Coca-Cola, This it did not do. Plaintiff was sat-
isfied to call defendant's attention' to the wrong that
was being done it, when first advised of it. Find-
ing that the wrong continued it had no recourse but
to bring this suit. And since the suit was brought
it has continued. There is some evidence that the
bartenders regard it as a joking matter. The sign
was not heeded. It did not better conditions. If
anything, it worsened them. The tendency of the

— 281 —

THE COCA-COLA COMPANY

sign is to cause the bartenders to think it is suffi-
cient. What is needed is notice that the responsi-
bility is on the bartenders, and if the wrong is con-
tinued he will be discharged and pains taken to see
that he complies with instructions. Abundant author-
ity exists supporting the position that plaintiff is
entitled to the relief which it seeks. None other
need be cited than this extract from Mr. JUSTICE
BROWN'S opinion in

Saxlehuer v. Siegel Cooper Co., 179 U. S. 42,
to wit:

"In the case against the Siegel Cooper Com-
pany there was no charge of an intentional fraud,
and the court found there was no evidence of
fraudulent conduct on its part, and dismissed
the bill as to that company. As to the other
two cases, the court found* that the clerks in
charge of their stores, in response to special
requests for Janes water, wrapped up and de-
livered Matyas water, purchased of the Eisner
and Mandelson Company. In other words, they
had palmed off the one for the other. We think
that an injunction should issue against all those
defendants, but that as the Siegel Cooper Com-
pany appears to have acted in good faith, and
the sales of others were small, they should not
be required to account for gains and profits.
The fact that the Siegel Cooper Company acted
innocently does not exonerate it from the charge
of infringement."

The plaintiff is entitled to a decree. The Commis-
sioner is allowed $100.00 for his service.

A. M. J. COCHRAN, Judge.

September 23, 1916.

Candler. Thomson & Hirsch, Atlanta, Georgia,
Selligman & Selligman, Louisville, Ky.
For Complainant.

— 282 —

v. THE LEONARD HOTEL COMPANY

No. 807— NOVEMBER 2, 1916

THE COCA-COLA COMPANY

v.
THE LEONARD HOTEL COMPANY.

This case having been heard by the Court and the
Court being sufficiently advised, it is now ordered and
adjudged as follows:

1. That the defendant, the Leonard Hotel Com-
pany, its agents, servants and employes and each of
them be and they are hereby enjoined from selling
My Coca or any similar drink to persons calling for
Coca-Cola without first informing such intending pur-
chaser or purchasers that the defendant does not
handle Coca-Cola, and cannot sell it to them, and
that the article that is offered or tendered for sale is
not Coca-Cola, or in any other way selling My Coca
or any other similar drink as and for Coca-Cola to
such persons.

2. That the complainant recover of the defendant
its costs herein expended.

A. M. J. COCHRAN,

Judge.

Nov. 2, 1916.
A copy. Attest:

J. W. MENZIES, Clerk,

By C. N. WARD, D. C.

— 283 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT

OF SOUTH CAROLINA

CIRCUIT COURT, IN EQUITY

THE COCA-COLA COMPANY and THE COCA-
COLA BOTTLING COMPANY, Complainant,

v.
H. G. BAILEY and E. B. DONALD, Defendants.

OF STANDING MASTER.

To the Honorable, the Judges of Said Court:

This is a suit for injunction and for damages for
the unlawful use of a trade-mark to which the com-
plainants claim the exclusive right.

The bill alleges that the complainant, "The Coca-
Cola Company/' is the owner of a trade-mark con-
sisting of the compound coined word " Coca-Cola ";
that under said trade-mark the said complainant and
its predecessors have, since the year 1887 to the pres-
ent time, been selling a beverage, the component parts
of which are a trade secret belonging to said com-
plainant, and compounded by said complainant only;
that its compound is known as "Coca-Cola Syrup,"
and under said trade-mark, is sold in foreign coun-
tries, as well as in trade with the Indian tribes, and
in commerce among the states of the Union; that
this trade-mark was duly registered by said complain-
ant in the proper office in the City of Washington, on
the 31st day of January, 1893; that on July 21st,
1899, said complainant assigned, with certain reserva-
tions and conditions, to J. B. Whitehead and B. F.
Thomas, the exclusive right to prepare and sell the

— 284 —

v. H. G. BAILEY AND E. B. DONALD

beverage made from the said ingredients prepared by
said "Coca-Cola Company, " and the right to use, in
said business, the said trade-mark "Coca-Cola"; that
subsequently the said Whitehead and Thomas con-
veyed their said rights with the assent of the said
Coca-Cola Company, to the complainant, The Coca-
Cola Bottling Co., who now have the exclusive
right to prepare, bottle and sell, under said trade-
mark, the said beverage known as Coca-Cola, within
the territory specified in said assignment, including
the State of South Carolina; that said business has
assumed large proportions and is very profitable;
that the defendants, under the name of The Union
Bottling Company, have engaged (presumably at
at Union in the State of South Carolina) in manu-
facturing and selling to the public an inferior liquid,
similar to said Coca-Cola, put up in bottles bearing
labels upon which is printed the word "Coca-Cola,"
in violation of the rights of complainants; that de-
mand has been made upon defendants to stop said vio-
lation and infringement upon the rights of complain-
ants, which demand has been refused.

Wherefore, etc.

The prayer is for injunction and damages.

The answer practically admits the use of labels
upon which are printed the words "Coca-Cola," but
denies any intentional violation of any rights of the
complainant, denies that as a matter of fact they have
damaged the complainant, by the use of said labels,
and denies the right of the complainants to enjoin
the defendants from further carrying on their said
business.

As to the other allegation, the defendants deny that
they have any knowledge, and demand proof of the
same, upon the filing of the answer, and upon notice
to the defendants, a preliminary injunction was
granted prohibiting the defendants to use the labels
containing the symbol "Coca-Cola" until the further
order of the Court.

— 285 —

THE COCA-COLA COMPANY

The cause having been reported to me to take the
testimony and report upon the issues, I have taken
the testimony which is herewith filed and upon the
same respectfully report as follows: No one appeared
before me for defendants.

I find as a matter of fact:

That the coined word "Coca-Cola" has been in
use as a trade-mark since the year 1887, and was duly
registered on January 31st, 1893.

The said trade-mark and the right to use the same
have passed through several successive hands to the
complainant, The Coca-Cola Company, who is now,
and was at the time of the filing of the bill herein,
the owner of the same.

That the complainant, The Coca-Cola Bottling Com-
pany, has the exclusive right to the use of said trade-
mark in the State of South Carblina.

That the defendants were, at the time of the com-
mencement of this suit, and until the service of the
order of injunction herein, engaged in selling a bev-
erage similar to that made by the complainants, but
inferior thereto in quality, and put up in bottles upon
which was pasted a label with the word "Coca-Cola"
printed thereon.

That said business was conducted and said labels
used without authority from the complainants, or
either of them, was necessarily injurious to their
business.

That the defendants were, before the commence-
ment of this suit, requested to desist from the use
of said label, but said request was refused.

That the profits realized by defendants from the
use of said label amounted to the sum of about One
Hundred and Twenty-five Dollars.

At common law, a trade-mark was recognized and
protected by the Courts before the formation of the

— 286 —

v. H. G. BAILEY AND E. B. DONALD

government of the United States. The jurisdiction
was based upon the theory of protection of the public
from imposition and fraud and protection of the
owner of the trade-mark from "unfair competition."
The remedy was in damages, and for a long time the
Courts of Equity refused to grant an injunction in
such a case, holding that there was an adequate
remedy at law. It was not until the time of Mans-
field that injunction was allowed. In the meantime,
several of the States of the American Union enacted
laws for the protection of trade-marks, some of which
differ materially from others. No attempt was made
by the Congress of the United States to pass such a
law, however, until the year 1870, when an act was
passed entitled, "An Act to revise, consolidate and
amend the statutes relating to patents and copy-
rights," part of which provided for the registration
of trade-marks, and appears in the Revised Statutes
as Sees. 4937 to 4947, inclusive. This was followed
by the Act of 1876, which made it a criminal offense
to counterfeit "trade-mark goods," or to "use or
deal in trade-mark goods," the trade-mark thereon
having been duly registered. Both of these acts were
'held by the Supreme Court, in the case of U. S. v.
Stiffins, to be unconstitutional and void, upon the
ground that Congress has no constitutional right to
deal with any matter of trade, except such as related
to commerce with foreign countries, or the Indian
tribes, or among the States of the Union, and that
the Acts in question undertook "to establish a uni-
versal system of trade-mark registration for the
benefit of all, etc., without regard to the character
of the trade," etc. (100 U. S. 550; U. S. v. Koch, 40
Fed. 250).

In the year 1881 Congress passed an Act entitled,
"An Act to authorize the registration of trade-marks
and protect the same" (21 Stats, at Large, 502).
This Act is confined, however/ to trade-marks used

— 287 —

THE COCA-COLA COMPANY

in foreign commerce or commerce with the Indians.
By the Act of 1882 (22 Stats, at Large, 298), its pro-
visions were extended to trade-marks used in such
commerce at the time of the passage of the Act of
1881. In 1903, an Act was passed entitled, "An Act
to authorize the registration of trade-marks used in
commerce with foreign nations, or among the several
States, or with Indian tribes, and to protect the
same" (33 Stats, at Large, 724). Both the Act of
1881 and that of 1903 contain clauses saving to the
owner of a trade-mark any rights he may have at
Common Law or in Equity. The trade-mark in this
case was adopted in 1887 and registered in 1893.
Had it not been shown that it was used in foreign
commerce and commerce with the Indian tribes, a
question might have arisen as to ihe validity of the
registration, inasmuch as the Act of 1881 does not
provide for the registration of trade-marks used in
commerce among the States. The evidence shows,
however, that this trade-mark is used in foreign com-
merce, with the Indian tribes, and to that extent is,
no doubt, conclusive as to the registration as far as
it goes. But the infringement complained of occurred
within the limits of one of the States. The registra-
tion was made in 1893, when there was no law for
the registration of a trade-mark used solely in com-
merce among the States.

Can the Act of 1905, which includes such cases, be
applied to a registration made before that Act was
passed?

I assume that I am not required to answer this
question, if it be necessary that it should be answered,
and therefore leave it for the consideration of the
Court.

There is no doubt that, aside from the provisions
of the Eegistration Acts, the complainant has a right
at Common Law, or in this Court, at the present
time, to a remedy upon the case as established by the

— 288 —

v. H. G. BAILEY AND E. B. DONALD

evidence. Unfair competition has always been good
ground for relief, either at law or in equity, and the
proof here is clear that the defendants have been en-
gaged in selling article (inferior) under a label bear-
ing a symbol or word so nearly resembling the trade-
mark of complainants as to deceive the public and
injure the business and reputation of the complain-
ants. Under such circumstances, proof of fraudu-
lent intent is not necessary (McLean v. Fleming, 96
U. S. 245; Menendez v. Holt, 128 U. S. 514; Amoskeag
Mfg. Co. v. Trainer, 101 U. S. 63).

These cases show that the complainants are en-
titled to a perpetual injunction.

As to damages, it appears from the evidence that
the defendants are financially irresponsible. This,
however, cannot deprive the complainants of their
right to a judgment, if they are otherwise entitled
thereto. In this Court, complainants are entitled to
an injunction and an accounting for profits made by
defendants in the unlawful business, but not to vin-
dictive or exemplary damages (Taylor v. Carpenter,
11 Paige Oh. 292, 2 Sand. Ch. 903 ; Hennessy v. Wil-
merding-Loewe Co., 103 Fed. Rep. 90). Defendants
have admitted under oath that they made a profit of
One Hundred and Twenty-Five Dollars on the sales
of their compound under the spurious label "Coca-
Cola." For this amount the complainants are en-
titled to judgment as actual damages. Counsel for
the complainants has announced that they claim no
more, and are willing to pay the costs of Court and
fees of Standing Master if not collected from the
defendants.

I find as matter of law:

That the complainants are entitled to a perpetual
injunction against the use by the defendant of the
spurious trade-mark "Coca-Cola" heretofore used
by defendants.

That the complainants are further entitled to

— 289 —

THE COCA-COLA COMPANY

judgment against the defendants for the sum of One
Hundred and Twenty-five Dollars and costs.

That the defendants being financially irresponsi-
ble, the complainants should be required (and have
expressed their willingness) to pay the costs and
expenses of this suit.
All of which is respectfully submitted.

JULIUS H. HEYWARD,

Standing Master.
Greenville, S. C.,

April 27, 1906.

I, C. J. Murphy, Clerk of the said Court, do hereby
certify that the foregoing Keport is a true copy of
the original now on file in my office.

Given under my hand and seal of said court, at
Charleston, S. C., this the 30th day of April, A. D.
1906. *

C. J. MURPHY,
(Seal) C. C. C. U. S. Dist. S. C.

Candler, Thomson &

Atlanta, Ga.,
Samuel H. Sibley,

Union Point, Ga.,

For Complainant.

— 290 —

v. H. G. BAILEY AND E. B. DONALD

THE UNITED STATES OF AMERICA,

DISTRICT OF SOUTH CAROLINA,

IN THE CIRCUIT COURT,

FOURTH CIRCUIT

IN EQUITY

COCA-COLA COMPANY and THE COCA-COLA
BOTTLING COMPANY, Complainants,

v.
H. G. BAILEY and E. B. DONALD, Defendants.

This cause came on to be heard at this term after
due notice to counsel. After hearing counsel for com-
plainants and considering the Report of the Stand-
ing Master filed in the case, it is

Ordered and Decreed, That said Report be in all
respects confirmed and stand as the judgment and
decree of this Court.

It Is Further Ordered, That the complainants pay
to Julius H. Heyward, Standing Master, One Hun-
dred Dollars ($100.00) for his fee in this case, and

Dollars costs of the court, for which

sums in turn the complainants shall have judgment
against the defendants, all to be enforced by execu-
tion on application therefor.

WM. H. BKAWLEY, U. S. Judge.

I, C. J. Murphy, Clerk of the said Court, do hereby
certify that the foregoing Decree is a true copy of the
original now on file in my office.

Given under my hand and seal of said Court at
Charleston, S. C., this the 4th day of June, A, D.
1906. C. J. MURPHY,

(Seal) C. C. C. U. S. Dist. S. C.

— 291 —

THE COCA-COLA COMPANY

IN THE UNITED STATES COURT FOR THE

WESTERN DISTRICT OF VIRGINIA,

CONTINUED AND HELD

AT ROANOKE

On the llth Day of May, 1915

THE COCA-COLA COMPANY,

v.
HEINS CIGAR COMPANY.

FINAL DECREE.

This Cause having come on for final hearing, and
the pleadings, evidence and arguments of counsel
having been considered, it is

Adjudged, Ordered and Decreed:

(1) That the defendant, Heins Cigar Company, and
all of the officers, agents and employes of said defend-
ant, be and they are hereby perpetually enjoined and
restrained from applying to any syrup not made by
the plaintiff the name Coca-Cola; from dispensing or
selling in response to orders or requests for Coca-
Cola, any beverage other than such as is made with
the syrup known as Coca-Cola and made by the plain-
tiff, and from representing any syrup not made by the
plaintiff to be Coca-Cola;

(2) That plaintiff recover of the defendant its
costs in this behalf expended, to be taxed by the
deputy clerk of this court at Roanoke, subject to re-

' view by this court, and that writ of execution issue
therefor in accordance with law;

— 292 —

v. HEINS CIGAE COMPANY

(3) That all relief prayed by the plaintiff, except
as hereinabove specifically granted, is denied, and
that this cause be retired from the trial calendar.

A copy, teste:

L. T. HYATT, Clerk,

By FRANK J. HALL, Deputy.

(Seal)

Candler, Thomson & Hirsch, Atlanta, Georgia,
McCormick & Smith, Roanoke, Virginia,
For Plaintiff.

— 293 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DIS-
TRICT OF OHIO,
EASTERN DIVISION

No. 438— DECEMBER 27, 1917

THE COCA-COLA COMPANY

v.
STANLEY KURTZ

I

Present: Honorable D. C. WESTENHAVER, U. S. Dis-
trict Judge.

This cause came on to be heard at this term and
was argued by counsel, and thereupon, upon consid-
eration thereof and the consent of all parties thereto,
it was ordered, adjudged and decreed as follows, viz. :

That the Court has jurisdiction of the subject mat-
ter of the suit and of the parties thereto; that the
said defendant, his agents, servants, employes, at-
torneys and assigns and all acting by or under his
authority be and they are hereby, each and all, per-
petually enjoined and restrained from using or em-
ploying in connection with the advertisement, offer-
ing for sale or sale of any beverage, the trade-mark
" Coca-Cola " or any like word, or the word " Co-
Cola " or any like word; from using or employing
a script, or a type, or a style of lettering identical
with or like that shown in and by Exhibit "B"
attached to the bill of complaint; and further from
doing any act or thing or using any name, device,
artifice or contrivance which may be calculated or

— 294 —

v. STANLEY KURTZ

likely to cause any product not the product of the
plaintiff to be sold as and for the product of the
plaintiff or likely to induce the belief that any prod-
uct not the product of the plaintiff is the product of
the plaintiff, and that a writ of injunction issue to
the above effect; that the plaintiff having waived an
accounting of profits and an assessment of damages
by reason of the alleged conduct and acts of the de-
fendant set out in the bill of complaint, that plain-
tiff, in lieu and in full of said profits and said dam-
ages thereby arising and occasioned, do have and
recover from the defendant the sum of One Dollar
in full of such profits and damages by reason of the
alleged conduct and acts of said defendant in said
bill of complaint set out, and that plaintiff do have
and recover from the defendant its costs herein to
be taxed.

THE UNITED STATES )
OF AMERICA, J

I, B. C. Miller, Clerk of the District Court of the
United States, within and for the Northern District
of the State of Ohio, do hereby certify that I have
compared the within and foregoing transcript with
the original Final Decree entered upon the Journal
of the proceedings of said Court in the therein en-
titled cause, at the term and on the day therein
named; and do further certify that the same is a
true, full and complete transcript and copy thereof.

Witness my official signature and the seal of said
Court, at Cleveland, in said District, this 28th day
of December, A. D. 1917, and in the 142nd year of
the Independence of the United States of America,
(Seal) B. C. MILLEK, Clerk.

(By) ANNA H. ELLIOTT, Deputy Clerk.

Candler, Thomson & HirscJi, Atlanta, Georgia,
Hull, Smith, Brock & West, Cleveland, Ohio,

For Complainant.

— 295 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF OHIO

No. 221— IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.
A. LONDON, Defendant.

FINAL DECREE.

This cause coming on for final Jiearing (the defend-
ant consenting thereto), it is Ordered, Adjudged and
Decreed, as follows:

(1) That the Court has jurisdiction of the subject
matter and of the parties to this suit.

(2) That the word COCA-COLA is a valid trade
mark of which the plaintiff is the sole owner.

(3) That plaintiff alone is entitled to use the trade-
mark COCA-COLA, and that its goods alone can law-
fully be sold under that name.

(4) That The Coca-Cola Company, a Georgia cor-
poration, then being the owner of the trade-mark
COCA-COLA, duly registered its said trade-mark un-
der and in conformity with the Act of Congress, ap-
proved March 3, 1881, entitled: "An Act to authorize
the registration of Trade-Marks and to protect the
same," and under the Act of Congress of February
20, 1905, entitled: "An Act to authorize the regis-
tration of Trade-Marks used in commerce with for-
eign nations or among the several states or with
Indian tribes and to protect the same ; ' ' that said regis-
trations, numbered 22,406 and 47,189 respectively, are
valid and subsisting and, in connection with the

— 296 —

v. A. LONDON

business and good will, by proper assignments duly re-
corded, as provided by law, became and now are the
sole property of the plaintiff, and that the plaintiff
is entitled to the rights and remedies provided in said
statutes.

(5) That the word COLA, adopted and used by the
defendants in connection with merchandise sold by
him is an infringement of plaintiff's said trade-mark
COCA-COLA and is a copy or colorable imitation
thereof within the meaning of the Act of Congress
of February 20, 1905, and that the defendant has af-
fixed said copy or colorable imitation to merchandise
of substantially the same descriptive properties as
those set forth in plaintiff's said registration and
has used said copy or colorable imitation in commerce
among the several states of the United States, and
that defendant thereby has infringed plaintiff's said
registered trade-mark.

(6) That defendant has applied to packages con-
taining his said product, decorated crowns with a
color scheme and script lettering thereon so nearly
resembling the distinctive decorated crowns of the
plaintiff, that defendant thereby has competed un-
fairly with the plaintiff.

(7) That said defendant, A. London, his agents,
servants, employes, attorneys, assigns and licensees,
and all acting by or under his authority, be and the
same hereby, each and all, are perpetually enjoined
and restrained from using or employing, in connec-
tion with advertising, or offering for sale or sale
of any beverage or ingredient thereof, plaintiff's
trade-mark, COCA-COLA, or any like word, or the
colorable imitation thereof COLA, or any like word,
and from using script lettering identical with or like
the script lettering used by plaintiff or defendant,
and from selling or offering for sale, furnishing or
supplying, in response to requests for Coca-Cola, any
product, not the plaintiff's, and, further, from doing

— 297 —

THE COCA-COLA COMPANY

any act or thing, or using any name, artifice or con-
trivance which may be calculated or likely to cause
any product, not the plaintiff's, to be sold as and for
the product of plaintiff, and that a writ of perpetual
injunction issue accordingly.

(8) That the plaintiff is entitled to have and re-
cover of and from the said defendant, the profits de-
rived by said defendant by reason of his infringe-
ment and unfair competition herein restrained, and
for the damages sustained by the plaintiff by reason
thereof, and said plaintiff electing to waive said ac-
counting of damages and profits, the Court finds the
sum of $1.00 in lieu thereof, and it is further
ordered, adjudged and decreed that plaintiff do have
and recover of and from said defendant the said sum
of $1.00, together with the costs of this suit to be
taxed and have execution therefor.

Enter:

J. E. SATER,

District Judge.

We consent to the entry of this decree :

Harold Hirsch, Edward 8. Rogers and G. E. Bibee,
solicitors for plaintiff.

James Joyce and F. 8. Monnett, solicitors for de-
fendant.

THE UNITED STATES OF AMERICA,
SOUTHERN DISTRICT OF OHIO, ^ ss.
EASTERN DIVISION.

I, B. E. Dilley, Clerk of the District Court of the
United States within and for the District and Divi-
sion aforesaid, do hereby certify that the foregoing is
a true and correct copy of the original Final Decree,
filed October 30, 1922, as the same appears on file and

— 298 —

v. A. LONDON

of record in the office of the Clerk of said Court, in
the therein entitled cause.

In Testimony Whereof, I have hereunto subscribed
my name and affixed the seal of said court, in the City
of Columbus, Ohio, this 30th day of October, A. D.
1922.

B. E. DlLLEY,

(Seal) Clerk.

By GERTRUDE C. CROPPER, Deputy.

onn _

L^f/fJ

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DIS-
TRICT OF PENNSYLVANIA

No. 31— IN EQUITY

COCA-COLA COMPANY, a Cor-
poration of the State of Georgia,
and THE COCA-COLA BOT-
TLING WORKS OF PITTS-
BURGH, a Corporation of the
State of Tennessee,

v.

E. S. FRISHKORN, a Citizen of
the State of Pennsylvania.

November Term
1906

DECREE Pro Confesso.

This case, having been brought on for hearing,
and it appearing that defendant, was duly served
with process on the llth day of November, 1906;
that the defendant having failed to appear and hav-
ing failed to plead, answer or demur, an order for
a decree pro confesso was duly entered on the 6th
day of January, 1907; that more than thirty days
have passed since the entry of the said order; the
Court hereupon adjudges and decrees that complain-
ant herein, Coca-Cola Company, is the owner and
proprietor of a good and valid trade-mark for bev-
erages, consisting of the term or designation "Coca-
Cola," and that the Coca-Cola Bottling Works of
Pittsburgh, complainant herein, is licensee from the
said Coca-Cola Company for the territory surrounding

— 300 —

v. E. S. FEISHKOKN

and including the City of Pittsburgh, Pennsyl-
vania, respecting such trade-mark rights; and that
the parties complainant herein have an established
business in preparing and dispensing beverages; and
that the appearance of their product when put upon
the market is characteristic, and as such recognized
by the trade as the bottled drink under the name
or designation "Toca-Coca" is infringing upon the
aforesaid trade-mark rights of these complainants,
and in putting such product on the market in the
form exemplified by the exhibits in this case, is en-
gaged in unlawful competition.

It is further ordered, adjudged and decreed that
the defendant, said E. S. Frishkorn, his agents, serv-
ants and workmen be, and hereby are, enjoined from
further infringing complainants' trade-mark, and
from dealing in bottled beverages which in appear-
ance so nearly resemble complainants' product as to
cause confusion in the trade; and specifically from
bottling, selling or dispensing a beverage under the
name "Toca-Coca," or in the form exemplified in the
exhibits herein.

Per Curiam.

February 13, 1907.

Candler, Thomson & Hirsch, Atlanta, Georgia,
Christy & Christy, Pittsburgh, Pennsylvania,
For Complainant.

— 301

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE NORTHERN
DISTRICT OF ALABAMA

SOUTHERN DIVISION

SEPTEMBER 28, ,1916

THE COCA-COLA COMPANY

v.
E. R. ROCHELLE.

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
PERCY, BENNEBS & BURR, Birmingham, Alabama,
For Complainant.

— 302 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN

DISTRICT OF ALABAMA,

SOUTHERN DIVISION

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
E. E. EOCHELLE, Defendant.

This being the day regularly set for the hearing
on the petition of complainant for a temporary in-
junction, and both parties being present and repre-
sented by counsel, the evidence being heard and con-
sidered, it is the judgment and decree of the court,
and it is hereby Ordered, Adjudged and Decreed
that a temporary injunction be and the same is
hereby issued against E. E. Eochelle, the defendant,
his agents, servants, attorneys, and all holding by
or through him, forbidding and enjoining him or
them from using the name "Caro-Cola" in the form
and fashion as the same by the evidence is shown to
be now used by the defendant, and as disclosed by
the caps on bottles attached as exhibits to the affi-
davits of complainant.

It is Further Ordered, Adjudged and Decreed by
the Court that a copy of this order be served upon
the defendant, or upon his attorney of record, W. A.
Denson, such service to be made by the attorneys for
the attorneys for the complainant, and that this order
take effect from the time of such service.

All other matters are reserved.

This the 26th day of May, 1916.

(Signed) W. I. GBUBB,

Judge.

— 303 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR EE NOR! IERN

DISTRICT OF ALABAMA,

SOU IERN DIVISION

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
R. R, ROCHELLE, Respondent.

I

This cause coming on for final trial, and being con-
sidered by the court, it is accordingly Ordered, De-
creed and Adjudged by the court, in accordance with
the agreement on file and with the testimony heard
in said cause, that the temporary injunction hereto
fore issued in this cause be and the same hereby is
now made permanent; and that the said defendant
be and he hereby is forever and perpetually en-
joined from the acts forbidden in the preliminary
injunction.

It is Further Ordered, Adjudged and Decreed that
all costs be and the same hereby are taxed against
the defendant.

This the 28th day of September, 1916.

W. I. GBUBB,

Judge.

— 304 —

IN THE DISTRICT COURT
OF THE UNITED STATES

FOR THE WESTERN
DISTRICT OF MISSOURI

APRIL 5, 1922

THE COCA-COLA COMPANY

v.

E. E. MURPHY, Trading as THE STAR BOTTLING

WORKS.

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
MANN & MANN, Springfield, Missouri,
For Complainants.

— 305 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF MISSOURI

No. 26

THE COCA-COLA COMPANY, Complainant,

v.

R. E. MURPHY, Trading as THE STAR BOTTLING
WORKS, Defendant.

FINAL DECREE.

The within case coming on for hearing and by and
with the consent of all parties of their counsel, it is
considered, ordered and decreed:

First: That the court has jurisdiction of the sub-
ject matter and of the parties to this suit.

Second: That the word Coca-Cola is a valid trade-
mark of which plaintiff is the sole owner.

Third: That plaintiff alone, is entitled to use the
trade-mark Coca-Cola and that its goods alone can
lawfully be sold under that name.

Fourth: That plaintiff being the owTner of the
trade-mark Coca-Cola, duly registered its said trade-
mark under and in conformity with the Act of Con-
gress approved March 3, 1881, entitled: "An Act to
authorize the registration of trade-marks and to pro-
tect the same," and under the Act of Congress of
February 20, 1905, entitled: "An Act to authorize
the registration of trade-marks used in commerce with
foreign nations or among the several states or with
Indian Tribes and to protect the same," that said

— 306 —

v. E. E. MURPHY

registrations numbered 22,406 and 47,189, respectively,
are valid and subsisting, and are the sole property
of the plaintiff, and that the plaintiff is entitled to
the rights and remedies provided in said statutes.

Fifth: That the words "Star Coke," "Coke" and
"Cola" adopted and used by the defendant, are, and
each of them is, an inf ringment of the plaintiff's said
trade-mark Coca-Cola and is a copy or colorable imita-
tion thereof, within the meaning of the Act of Con-
gress of February 20, 1905; and that the defendant
has affixed said copy or colorable imitation to mer-
chandise of substantially the same descriptive proper-
ties as those set forth in plaintiff's said registrations
and to labels, signs, prints, packages, wrappers and
receptacles intended to be used and used upon and in
connection with the sale of merchandise of substan-
tially the same descriptive properties as those set
forth in such registrations and has used such copy or
colorable imitation contrary to the rights of plaintiff
herein; and that the defendant thereby has infringed
the plaintiff's said registered trade-mark.

Sixth: That the defendant has used and applied to
packages containing its said product, decorated
crowns with a color scheme and script lettering
thereon so nearly the same as the distinctive crowns
and script lettering of the plaintiff as to be substan-
tially indistinguishable therefrom, and that % the de-
fendant thereby has competed unfairly with the
plaintiff.

Seventh: That the defendant, R. E. Murphy,
trading as The Star Bottling Works, his agents, serv-
ants, employes, attorneys, licensees, transferees and
assigns and each and all thereof and all acting by or
under his authority be and are each and all per-
petually enjoined and restrained from using or em-
ploying or authorizing the use or employment, in con-
nection with the manufacture, advertisement, offering
for sale, or sale of any beverage or ingredient thereof,
of plaintiff's trade-mark Coca-Cola, or any like word,

— 307 —

THE COCA-COLA COMPANY

or the colorable imitation thereof, "Star Coke,"
"Coke," or "Cola," or any like word; from using or
employing or authorizing the use or employment of
designs, devices, script lettering, crowns identical
with or like the designs, devices, script lettering, or
crowns of the plaintiff, or the designs, devices, script
lettering, or crowns used by the defendant and re-
ferred to in the bill of complaint herein, and further
from doing any act or thing or using any name or
names, devices, artifice or contrivance which may be
calculated or likely to cause any product not the
plaintiff's to be sold as and for the product of the
plaintiff, and that writs of injunction accordingly
issue forthwith.

Eighth: That all labels, signs, prints, packages,
wrappers, or receptacles in the possession of the de-
fendant bearing the colorable imitation "Star Coke,"
"Coke," or "Cola," of the plaintiff's registered
trade-mark Coca-Cola be forthwith delivered up for
destruction, provided, however, that the bottles of
the defendant with the name blown therein may be
used in the sale of drinks not resembling that of the
plaintiff where the name Coca-Cola is removed or hid-
den and the name of the contents of said bottles
plainly shown on same.

Tenth: That defendant pay the costs of this suit to
be taxecj, including all costs in this court, and that
upon taxation plaintiff have execution therefor.

This 5th day of April, 1922.

(Sd). AREA S. VAN VALKENBURGH,

District Judge.
Consented to :

(Sd) Mann & Mann and Candlet, Thomson &
Hirsch, for plaintiff.

(Sd) E. E. Murphy, defendant.

— 308 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF LOUISIANA

No. 13,405— IN EQUITY

THE COCA-COLA COMPANY

v.
A. L. PILSBURY, JR.

This cause came on to be heard this day, when:

Considering the joint motion of counsel for com-
plainant and for defendant, and the stipulation and
agreement therein, all on file herein, and in accord-
ance therewith:

It Is Ordered, Adjudged and Decreed: That the
preliminary injunction herein issued in favor of com-
plainant and against the defendant, enjoining com-
plainant "from manufacturing, preparing, selling or
supplying others for sale, any drink, syrup or extract
under the mark, symbol or name of 'Ko-Kola,' or
other device identical with or like Coca-Cola, or from
using any other name or device calculated to induce
the public to believe that the drink, syrup or extract
of defendant is the same as Coca-Cola, be maintained
and perpetuated; and that the demand of your orator
for damages herein be dismissed as having been com-
promised; and that the appointment of the Master
herein, to hear evidence, etc., be revoked, as no longer
necessary.

Decree rendered and signed in Open Court this
(5th) Fifth day of January, A. D. 1907.

(Signed) CHARLES PARLANGE,

U. S. Judge.

Candler, Thomson & Eirsch, Atlanta, Ga,,
John May, New Orleans, La., for complainant.

— 309 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF LOUISIANA

No. 13406— IN EQUITY

THE COCA-COLA COMPANY

v.
THE AMERICAN BOTTLING WORKS.

This cause came on to be heard, this day, when:
Considering' the joint motion of counsel for com-
plainant and for defendant, and the stipulation and
agreement therein, all on file herein, and in accord-
Mi ice therewith:

// Is Ordered, Adjudged and Decreed, That the
preliminary injunction herein issued in favor of com-
plainant and against the defendant, enjoining the
complainant

"from any further use of the mark or symbol
'Ko-Kola,' or any bottled drink similar to the bot-
tled drink known as 'Coca-Cola/ manufactured
by the complainant, as described in the Bill of
Complaint herein, or from in any other manner,
infringing upon the trade-mark or trade rights of
the complainant"

be maintained and perpetuated; and that the demand
of your orator for damages be dismissed, as having
been compromised; and that the appointment of the
Master herein, to hear evidence, etc., be revoked as
no longer necessary.

Decree rendered and signed in Open Court on
this (5th) fifth day of January, A. D. 1907.

(Signed) CHARLES PARLANGE,

U. S. Judge.

— 310 —

v. THE AMERICAN BOTTLING WORKS

CLERK 's OFFICE :

I Certify the foregoing to be a true copy from the
original record of this office.

Witness my hand and seal of said Court, at the
City of New Orleans, this 10th day of September,
1913.

H. J. CARTER, Clerk,
(Sd.) By W. B. DONOVAN

Deputy Clerk.

Candler, Thomson & Hdrsch, Atlanta, Ga.,
John May, New Orleans, La.,

For Complainant.

— 311 —

THE COCA-COLA COMPANY

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF LOUISIANA,

NEW ORLEANS DIVISION

(Late Circuit)

No. 13406

THE COCA-COLA COMPANY

v.
THE AMERICAN BOTTLING WORKS.

I

Whereas, the plaintiff herein has instituted pro-
ceedings against the defendant to have them de-
clared to be in contempt of court by reason of the
fact that they were bottling and selling the drink
known as "Gay-Ola" in violation of the injunction
and decree rendered herein on the 5th day of Jan-
uary, 1907; and, whereas, defendant was not prior
to this date aware that said action on their part was
in contravention of plaintiff's rights, but now recog-
nizes that the bottling and selling of said "Gay-Ola"
was in violation of said injunction and decree, and
a contempt of court,

Now, therefore, it is hereby stipulated and agreed
between the parties hereto through their undersigned
counsel that defendant will immediately cease and
never hereafter again engage in under any circum-
stances the bottling and selling of the drink known
as "Gay-Ola.

312 —

? j

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE SOUTHERN

DISTRICT OF FLORIDA

IN CHANCERY

MARCH 3, 1913

THE COCA-COLA COMPANY

v.

LOUIS W. HANNE and FREDERICK H. HANNE,
doing business as HANNE BROTHERS, a
Partnership.

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
COOPEE & COOPEK, Jacksonville, Florida,
For Complainant.

— 313 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN

DISTRICT OF FLORIDA,

IN CHANCERY

THE COCA-COLA COMPANY,

v.

LOUIS W. HANNE and FREDERICK H. HANNE,
doing business as HANNE BROTHERS, a
Partnership.

Whereas, a stipulation and agreement of com-
plainant and defendants has been nled in the above-
entitled cause, whereby it is stipulated and agreed
by and between said complainant and defendants that
a decree shall be rendered by the Court in said cause
in accordance with the allegations and prayers of
the bill of complaint therein, and that a perpetual
injunction be issued against the defendants as prayed
in said bill of complaint, and that defendants shall
pay the costs that shall be taxed in said suit, but
that there shall be no decree against the defendants
for any accounting for profits from the manufacture
or sale of the product designated as " Hanne's Coca
& Kola," or for any damages to complainant in the
premises, for manufacture or sale of said Hanne's
Coca & Kola prior to this suit.

Now, it is therefore considered, ordered, adjudged
and decreed that the defendants, and all of their
associates, salesmen, servants, clerks, agents and
workmen, employes and attorneys, and each and every
person claiming under them or by or through said
defendants, or in any way connected with their busi-
ness, be and they are hereby perpetually enjoined
and restrained:

— 314 —

v. LOUIS W. HANNE, etc.

1. From in any way or manner making or selling
a product under the name of "Hanne's Coca & Kola,"
or in any way so as to pass off the same as and
for the product of said complainant, or in any such
way as to enable others to pass off the same as and
for the product of complainant.

2. From using in any form whatsoever the name
"Hanne's Coca & Kola," or any name that is a col-
orable imitation of the name Coca-Cola, as applied
to a soft drink.

3. From using any name sufficiently similar to the
name Coca-Cola as applied to any soft drink as to
cause deceit.

4. From advising, conspiring or telling retailers,
or any person selling a soft drink that the said drink
of said defendants can be sold as genuine Coca-Cola,
or can be substituted therefor.

5. From marketing its product in the same iden-
tical color which has for so long been used by said
complainant in marketing its product.

6. From suggesting, directly or indirectly, to re-
tail dealers or anyone, the substitution of any bev-
erage not made by said complainant as and for Coca-
Cola when Coca-Cola is called for, and from placing
in the hands of retail dealers any drink so manu-
factured, packed, marked, made or otherwise mar-
keted in such manner as to cause the substitution
thereof as and for complainant's said product, and
which may be in the hands of unscrupulous dealers
an instrument of fraud, and from any other act in
the premises in any manner or form calculated to
deceive.

It is further ordered, adjudged a/^^d decreed that
complainant has and have the sole and exclusive
right to the use of the trade-mark or trade-name,
Coca-Cola, in connection with a drink or beverage.

It is further ordered, adjudged and decreed, as
stipulated and agreed in said stipulation and

— 315 —

THE COCA-COLA COMPANY

agreement by and between complainant and defend-
ants, that defendants shall pay the costs in said suit.
Done and Ordered this 3rd day of March, A. D.
1913.

(Signed) JOHN M. CHENEY, Judge.

— 316 —

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE DISTRICT OF

KANSAS

SECOND DIVISION

THE COCA-COLA COMPANY

v.
THE COX BOTTLING COMPANY.

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
HOLMES, YANKEY & HOLMES, Wichita, Kansas,

For Complainant.

— 317 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT

OF KANSAS

IN EQUITY

THE COCA-COLA COMPANY, a corporation,
Complainant,

v.

THE COX BOTTLING COMPANY, a corporation,

Defendant.

DECREE.

I

This cause came on to be heard on this 9th day of
October, 1912, upon the pleadings and upon the stipu-
lations of parties and from the stipulation as filed,
the court finds that the plaintiff is entitled to the
relief prayed for in its bill of complaint, as to the
injunction demanded, and that as to the matter of
damages suffered by the plaintiff, the court finds
that the same have been adjudged and settled be-
tween the parties hereto.

It is, therefore, ordered, adjudged and decreed that
the defendant, the Cox Bottling Company, its agents
and servants be and they are hereby perpetually en-
joined and restrained from in any way or manner
making or selling its products of soft drinks in such
a way as to pass off the same as and for the product
"Coca-Cola" and from using in any way whatsoever
the name "Co Kola" as applied to any drink or from
using any name which is sufficiently similar to the
name "Coca-Cola" as applied to any drink as to
cause deception and deceit, and the defendant, its

— 318 —

v. THE COX BOTTLING COMPANY

agents and servants are hereby perpetually enjoined
and restrained from using, purchasing or procuring
any mark, bottle, crown, stamp or label having printed
or stamped thereon the words ''Co Kola'7 or any
other word sufficiently similar to the words " Coca-
Cola " as to cause deception or deceit.

It is further ordered and adjudged that the de-
fendant pay all costs of this action to be taxed by
the clerk.

JOHN C. POLLOCK,

Judge.

— 319 —

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE DISTRICT OF

KANSAS

SECOND DIVISION

IN EQUITY— JANUARY 22, 1913

THE COCA-COLA COMPANY, Complainant,

v.

EALPH E. LIGHTNER and WILLIAM H.
HAZELTON, partners doing business

under the name and style of
ALLEN BOTTLING COMPANY, Defendants.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
HOLMES, YANKEY & HOLMES, Wichita, Kansas,
For Oomplainant.

320 —

IN EQUITY

THE COCA-COLA COMPANY, a corporation,
Complainant,

v.

RALPH E. LIGHTNER and WILLIAM H.
HAZELTON, partners doing business

under the name and style of
ALLEN BOTTLING COMPANY, Defendants.

DECREE.

This cause comes on to be heard on this 22nd day
of January, 1913, upon the pleadings and upon the
default of the defendants for answer and from the
examination of the Bill of Complaint herein filed,
the Court finds that the complainant is entitled to the
relief prayed for in its Bill of Complaint, as to the
injunction demanded, and that as to the matter of
damages suffered by the complainant, the court finds
that the said matter should be referred to a Special
Master to hear the evidence and to ascertain the
amount of damages suffered by the complainant by
reason of the acts complained of against the de-
fendants.

It is, therefore, ordered, adjudged and decreed
that "the defendants Ralph E. Lightner and William
H. Hazelton, partners doing business under the name
and style of Allen Bottling Company, their asso-
ciates, agents, employes and servants be, and they
are hereby perpetually enjoined and restrained from

— 321 —

THE COCA-COLA COMPANY

in any way or manner making or selling their prod-
ucts of soft drinks in such a way as to pass off the
same as and for the product "Coca-Cola" and from
using in any way whatsoever the name "Coke-Ola"
as applied to any drink or syrup used in the prepara-
tion of any drink, or from using any name which is
sufficiently similar to the name "Coca-Cola" as ap-
plied to any drink or syrup which is used in the prep-
aration of any drink as to cause deception and deceit,
and the defendants, their agents, servants and em-
ployes are hereby perpetually enjoined and restrained
from using, purchasing or procuring any mark, bottle,
crown, stopper, stamp or label having printed or
stamped thereon the words "Coke-Ola" or any other
word sufficiently similar to the words "Coca-Cola" as
to cause deception and deceit, and that the defend-
ants, their agents, servants and dmployes are hereby
perpetually enjoined and restrained from using any
bottles for the purpose of containing any drinks upon
which bottles there shall be stamped or blown into
glass the words "Coca-Cola."

It is further ordered and adjudged that the de-
fendants pay all the costs of this action up to the
time of and including the entering of this decree,
which costs are to be taxed by the clerk.

It is further ordered that the appointment of a
Special Master to hear and ascertain the damages, if
any suffered, by the complainant which shall be made
hereafter upon the application of the parties hereto.

JOHN C. POLLOCK,

Judge.

— 322 —

IN THE CIRCUIT COURT

OF THE UNITED STATES

FOR THE NORTHERN

DISTRICT OF ILLINOIS

EASTERN DIVISION

IN EQUITY— OCTOBER 9, 1908

THE COCA-COLA COMPANY

v.

MAX JACOBS and HAERY RACUSIN and IKE
MICHELSON, trading as the WESTERN BOT-
TLING WORKS.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
JOHN W. HILL, Chicago, Illinois,
For Complainant.

— 323 —

THE COCA-COLA COMPANY

UNITED STATES CIRCUIT COURT,

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

IN EQUITY

Present: HON. WM. H. SEAMAN, Circuit Judge.

COCA-COLA COMPANY, a Corporation,
Complainant,

v.

MAX JACOBS and HARRY EACUSIN and IKE
MICHELSON, trading as THE WESTERN
BOTTLING WORKS, Defendants.

DECREE.

This cause coming on to be heard it is, by consent
of the parties, hereby adjudged, ordered and decreed
as follows:

First: That Coca-Cola Company, the complainant
herein, is the sole and exclusive owner of a secret
process for the manufacture of a certain beverage
which ever since complainant's incorporation and for
a long time previously by its predecessor, has been
and is termed and known by the trade name of
" Coca-Cola "; that said beverage has been generally
and exclusively sold throughout the United States,
including the State of Illinois, by its said trade name
of "Coca-Cola," and has been extensively and ex-
clusively advertised by such name, whereby said bev-
erage has come to be known to the public by its said
trade name "Coca-Cola"; that by virtue of its char-
acter and its long continued and exclusive use by the
complainant and its predecessor in business, the said

— 324 —

v. MAX JACOBS, et al.

name " Coca-Cola " has come to signify in the trade
that the beverage bearing said name is the product
of the complainant; that the complainant and its
predecessor by the adoption of and long continued
use of the word "Coca-Cola" to designate the said
beverage manufactured and sold by it and the regis-
tration of the said fanciful compounded word " Coca-
Cola" in the United States Patent Office, as a trade-
mark to designate its goods on January 31, 1893, cer-
tificate No. 22,406, and the re-registration in the
United States Patent Office of the same compounded
word on October 31, 1905, certificate No. 47,189, be-
came the sole and exclusive owner of the use of said
compounded words "Coca-Cola" as a trade-mark to
designate the said beverage manufactured and sold
by it and for a long time known to the trade by the
trade name "Coca-Cola."

That the defendants, Harry Racusin and Ike
Michelson, trading as the Western Bottling Works,
have heretofore marketed a beverage under the name
"Kos-Kola" of the same general color and appear-
ance as complainant's "Coca-Cola," placing the same
in bottles of the same general size and form and
sealed with a metal cap, all closely resembling in ap-
pearance the bottles and the bottled beverage "Coca-
Cola," as placed upon the market by the authorized
bottlers of the complainant; that the defendant, Max
Jacobs, through his employes has sold said so-called
"Kos-Kola" in various theaters and other places in
Chicago where he has a concession, for sale of articles
of this kind, both in bottles and in glasses; that in
offering said spurious beverage "Kos-Kola" for sale
in the bottles and in glasses, as aforesaid, the ven-
ders, the employes of said Max Jacobs, call and an-
nounce the sale of "Kos-Cola," and other like terms,
so closely resembling in sound the words "Coca-Cola"
as to lead purchasers to believe they are purchasing
the complainant's said beverage, "Coca-Cola."

VII. The complainant has sufficient interest in the

— 325 —

THE COCA-COLA COMPANY

subject matter of the suit to maintain it. It retains
title to the trade-mark and is directly interested in
the infringement of it with reference even to bottled
goods, since the diminution of sales, by infringement,
of the bottlers reflects on its sales to the bottlers.

VIII. The Act of February 20, 1905, does not seem
to me to be open to the constitutional objections as-
serted against it by respondents.

IX. The probability of complainant's ultimate suc-
cess seems to me great enough to justify the issue of
the temporary injunction. Allowance of damage for
infringement is an inadequate remedy to the plain-
tiff because of the impossibility of any accurate meas-
urement of its accrued damages and the uncompcu-
sated inroad on its good will by continued use of de-
fendant's mark. The same may be said of the defend-
ant's right to indemnify an injunction bond. How-
ever, the defendant can continue its business, using
a different mark or none at all, so that there will not
be a total interruption of its business, and the trial
of the cause can be speeded to final decree by any rea-
sonable order desired by defendant, and all reasonable
protections given it by requiring the execution of a
proper injunction bond. I think the greater prob-
ability of injury, not capable of being indemnified
against, is with the denial of the temporary injunc-
tion.

It is therefore further adjudged and decreed, that
the defendants, Max Jacobs and also Harry Racusin
and Ike Michelson, trading as the Western Bottling
Works, they and each of them and each of their
agents, attorneys, workmen, employes and represent-
atives are hereby enjoined from directly or indirectly
manufacturing, bottling or selling or offering for
sale, proclaiming or announcing for sale any bever-
age whether bottled or in the glass as "Coca-Cola",
"Kos-Kola", "Cold-Cola", or by any other name,
term or expression so similar in sound or in appear-
ance as to lead purchasers to believe that they are

— 326 —

v. MAX JACOBS, et al.

purchasing the beverage known as " Coca-Cola",
manufactured by and the product of the complainant
herein or from in any manner infringing upon the
trade name or the trade rights of the complainant,
and diverting or seeking to divert to them, or either
of them, sales that would otherwise come to the com-
plainant and its representatives or aid said defend-
ants or either of them in consummating sales by in-
ducing purchasers to believe that they are purchas-
ing the complainant's goods.

The complainant having admitted in open court
that the defendants have made full settlement and
satisfaction for all damages, savings and profits on
account of their said infringement of said trade-mark
and their unfair competition with complainant's busi-
ness in the manufacture and sale of said beverage,
and also of all costs on account of this litigation, a
reference to a Master is waived by the complainant
herein and this decree is hereby made perpetual and
final without costs from either party to the other.

NORTHERN DISTRICT OF ILLINOIS. } _

> oo.

EASTERN DIVISION. j

I, H. S. Stoddard, Clerk of the Circuit Court of the
United States, for said Northern District of Illinois,
do hereby certify the above and foregoing to be a
true and complete copy of the Decree entered of rec-
ord in said Court on the ninth day of October, A. D.
1908, in the cause wherein Coca-Cola Company, a cor-
poration, is the complainant and Max Jacobs et al.
are the defendants, as the same appears from the orig-
inal records of said court, now remaining in my cus-
tody and control.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court at my office in

— 327 —

THE COCA-COLA COMPANY

Chicago, in said District, this ninth day of October,
A. D. 1908.

H. S. STODDARD,

(SEAL) Clerk.

(By) ARTHUR E. CLAUSSEN,

Deputy.

— 328 —

IN THEi DISTRICT COURT
OF THE UNITED STATES

FOR THE NORTHERN
DISTRICT OF ALABAMA

SOUTHERN DIVISION

IN EQUITY— JULY 11, 1913

THE COCA-COLA COMPANY, Complainant,

v.
NATIONAL SYRUP COMPANY, Respondent.

CANDLER, THOMSON & HIRSCH, Atlanta, Georgia,
PERCY, BENNERS & BURR, Birmingham, Alabama,
For Complainant.

— 329 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ALABAMA, SOUTHERN DIVISION

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
NATIONAL SYRUP COMPANY, Respondent.

This being the day heretofore sdt for the hearing of
the petition of complainant for a writ of injunction
as in said petition set forth, and said parties being
now in open court,

It is ordered, adjudged and decreed by the Court
that the Complainant is entitled to the relief prayed
for.

It is further ordered, adjudged and decreed by
the Court that the respondent, National Syrup Com-
pany, its associates and representatives, be and they
hereby are perpetually enjoined and restrained from
in any way or manner making or selling its products
in such way as to pass off the same for and as the
product of complainant; and they be and hereby are
restrained from using in any form whatever the name
"Cafa Cola", or the words "Coca" or "Cola" as ap-
plied to any drink or syrup from which drinks are
made; or from using said words upon the caps of
bottles in which said drinks might be bottled; or in
any other advertising way or for any other purpose
applicable to the manufacture and sale of a drink.

And respondent consenting to the rendering of this
decree in open court, it is further ordered, adjudged

— 330 —

v. NATIONAL SYEUP COMPANY

and decreed that this injunction be and the same
hereby is made permanent; and that the complainant
is not entitled to any damages on account of the
former use of said name; and that this decree shall
stand as a final decree in said cause; the costs of said
suit to be taxed against the complainant, for which
execution may issue.
This llth day of July, 1913.

WM. I. GrRUBB,

Judge.

— 331 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT
OF KENTUCKY

THE COCA-COLA COMPANY, Complainant,

v.

FRANK ROTELLA, doing business under the name
of the ROTELLA BOTTLING COMPANY;
CHARLEY ZALFONTA, doing business as the
ANSONIA CLUB; G. MAZZA, ISAAC LIEB-
ERMANN and LOUIE LIEBERMANN, doing
business under the name of LIEBERMANN
BROTHERS, and L. B. BOTTLERS; JOHN
SPANG, HERMAN LEVIN, JOHN LEVIN and
NATHAN LEVIN, doing business as H. LEVIN
& SONS, BOTTLERS; GEORGE H. HORN-
ING; ALEXANDER BINSTOCK; JOHN GASH
and RICHARD LAFKOWITZ (the name " John"
and "Richard" being fictitious, defendants' real
name being unknown to complainant), doing busi-
ness under the name of GASH & LAFKOWITZ;
JULIUS JOACHIMSTAHL; ANDREW DEICH
(the name "Andrew" being fictitious, defendant's
real name being unknown to complainant) ; and
EDWARD MENDEL (the name "Edward" be-
ing fictitious, defendant's real name being un-
known to complainant), Defendants.

This Cause coming on to be heard on complain-
ant's motion for a final decree, the complainant ap-
pearing by its solicitors Bedle & Kellogg, of Jersey
City, New Jersey, Harry D. Nims and Edward D.
Brown, of New York City, and the defendant appear-
ing by their solicitors, Grosvenor Nicholas, Esq., of the
City of New York ; and it appearing to the court that
the issue involved herein has been settled and
agreed upon by the parties hereto, and the defendants

— 332 —

v. FRANK EOTELLA, et al.

agreeing to consent to the entry of a final decree in
the form following:

Now, on motion of Frederick W. Kellogg and
Harry D. Nims of Counsel for the complainant, it is

Ordered, Adjudged and Decreed that the defend-
ants Frank Rotella, Charles Zalfonta and C. Mazza
be and they hereby are perpetually enjoined and
restrained,

1. From making, concocting or compounding any
syrup or substance adopted to be used in the prepara-
tion of a beverage with the intent to use the name
for making such a beverage to be dispensed as and
for Coca-Cola the product of the complainant.

2. From selling any syrup adopted to be used in
the preparation of a beverage having the character-
istics of Coca-Cola with the intent and knowledge or
even suggestion that the same be used for preparing
a beverage to be dispensed as and for said Coca-
Cola.

3. From selling any beverage under the name of
"Koka-Nova,"

4. From manufacturing, offering for sale or sell-
ing any beverage other than Coca-Cola so packed or
dressed as to be likely to be mistaken for or con-
fused with Coca-Cola, the product of the complainant.

5. From selling or exposing for sale any beverage
other than Coca-Cola and having the peculiar and
distinctive color, appearance and flavor of Coca-Cola
or any such near approach thereto as may be likely to
deceive purchasers without such differentiation as
will effectually distinguish it from Coca-Cola the
product of the complainant.

6. From any use whatever in the sale of any soft
drink of the name Coca-Cola or of the script, label,
or cap long used by the complainant in the sale of its
product.

That no accounting of profits and damages is or-
dered from the defendants Frank Rotella, Charley

— 333 —

THE COCA-COLA COMPANY

Zalfonta or C. Mazza, this injunction being given by
them in full satisfaction of damages and profits
and costs.

(Signed) JOHN RELLSTAB,

U. S. District Judge.
I consent to the
entry of the foregoing decree :
Grosvenor Nicholas,

Solicitor for Defendants
Eotella, Zalfonta & Mazza.
Francesco Eotella

Witness: Maurice J. Moore.

(The foregoing decree was taken against each of the
defendants named in the above stated case, separate
decrees being taken in each case. However, the above
is a correct copy of all decrees taken, each being
dated April 21, 1913.)

Candler, Thomson & H-irsch, Atlanta, Ga.,
Frederick W. Kellogg,
Harry D. Nims,

Solicitors and of Counsel for the
Complainant.

— 334 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ALABAMA, SOUTHERN DIVISION

IN EQUITY

THE COCA-COLA COMPANY

v.
CROWN CITY BOTTLING & SYRUP COMPANY

TEMPORARY DECREE.

This cause coming on to be heard upon the petition
of the complainant for a temporary injunction, and
both parties being present in Court represented by
counsel, it is now ordered, adjudged and decreed by
the Court that the respondent herein, Crown City
Bottling and Syrup Company, and all of its as-
sociates, salesmen, servants, clerks, agents, workmen,
employes and persons claiming or holding under or
through said respondent be and they hereby are en-
joined and restrained from bottling or selling in bot-
tles, or in using in any form whatsoever for the
purpose of selling their product, bottles upon which
the words " Coca-Cola" are blown or printed.

It Is Further Ordered, Adjudged and Decreed by
the court that notice of this injunction be given to
respondent by serving upon its attorney of record a
copy of this order.

It Is Further Ordered, Adjudged and Decreed by
the Court that the other questions raised in said peti-
tion for a temporary injunction be passed until Tues-
day, July 23rd, 1912, at ten o'clock, A. M.

This the 16th day of July, 1912.

(Signed) W. I. GRUBB,

Judge of the District Court.

— 335 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ALABAMA, SOUTHERN DIVISION

IN EQUITY

THE COCA-COLA COMPANY

v.
CROWN CITY BOTTLING & SYRUP COMPANY

FINAL DECREE.

This cause coming on for final hearing, and being
regularly called, it is ordered, adjudged and decreed
by the court that the temporary injunction hereto-
fore rendered in said cause be and the same is hereby
made in all respects permanent.

It Is Further Ordered, Adjudged and Decreed that
the complainant has in open court remitted its claim
for any damages.

It Is Further Ordered, Adjudged and Decreed that
all the costs of this proceeding be taxed against
respondent, for which let proper execution issue.

(Signed) W. I. GRUBB, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Percy, Benners & Burr, Birmingham, Ala.

For Complainant.

— 336 —

No. 30,595— IN EQUITY

Monday, December 11, 1911.

Present: HONORABLE CHRISTIAN C. KOHLSAAT, Circuit
Judge.

THE COCA-COLA COMPANY

v.

FEANK I. WOLGAST, KALPH ELDON BIGELOW,
co-partners doing business in the name of Wol-
gast & Bigelow.

This cause coming on for final hearing upon the
bill of complaint and the exhibits thereto and the an-
swers of the defendants, and the defendants through
their solicitor, William F. Bigelow, being present in
open court and in open court consenting to this de-
cree :

It is by the Court Ordered, Adjudged and Decreed
that the defendants, Frank E. Wolgast and Ealph
Eldon Bigelow, and each of them, their respective at-
torneys, servants, agents, associates, workmen, em-
ployes, representatives and all claiming or holding
under or through them, be, and they are hereby per-
petually enjoined and restrained from in any way or
manner making or selling or attempting to make or
sell their product as described in the bill of complaint
in such a way as to pass for the same as and for the
product of the complainant as described in said bill
of complaint and from using in any form whatsoever,

— 337 —

THE COCA-COLA COMPANY

the name, Coca-Cola or Coca-Kola, either alone or
in association with any other words and from any
acts in the premises in any manner or form calculated
to deceive any person into believing the product of
the defendants to be the product of the complainant.

It is further Ordered, Adjudged and Decreed that
the defendants deliver up to said complainant any
and all labels in the possession of said defendants
which labels bear the name of Coca-Cola or Coca-
Kola alone or in association with any other words.
The complainant in open court waives all right to re-
cover damages for or to compel the defendants to
account for profits derived from any transactions of
the defendants occurring prior to the entry of the re-
straining order of December 4th, 1911.

It is further Ordered that no costs herein shall be
taxed against the defendants. )

Arid the Court further Orders that a writ of per-
manent injunction issue to the marshal of this court
to be by him served upon the defendants, Frank E.
Wolgast and Ralph Eldon Bigelow, returnable ac-
cording to law, enjoining and restraining the defend-
ants, Frank R. Wolgast and Ralph Eldon Bigelow,
and each of them and their respective attorneys, serv-
ants, agents, associates, workmen, employes and rep-
resentatives and all claiming or holding under or
through them as in this final decree set forth.

Enter Dec. 11, 1911.

KOHLSAAT,

Judge.
0. K.

W. F. Bigeloiv, Solicitor for Defendants.

Candler, Thomson & Hirsch, Atlanta, Ga.; Ringer,
Wilhartz & Louer, Chicago, 111.; Pam & Hurd, Chi-
cago, 111., for Complainant.

338 —

v. FRANK I. WOLGAST, etc.

IN THE DISTRICT COURT OF THE UNITED

STATES OF AMERICA, FOR THE

NORTHERN DISTRICT OF

ILLINOIS, EASTERN

DIVISION

I, John H. B. Jamar, Clerk of the District Court of
the United States of America for the Northern Dis-
trict of Illinois, do hereby certify the above and fore-
going to be a true and correct copy of Final Decree
made and entered in said Court on the llth day of
December, A. D. 1911, as fully as the same appears
of record in my office.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court at my office
in Chicago, in said District, this 22nd day of August,
A. D. 1922.

JOHN H. B. JAMAR, Clerk.

— 339 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF ILLINOIS, NORTHERN

DIVISION

Tuesday, October 3, A. D. 1916

Present: HONORABLE J. OTIS HUMPHREY, Judge.

THE COCA-COLA COMPANY, Plaintiff,

v.

JAMES McMASTER and BONNIE H. DARGES,

Defendants.

This cause came on to be heard at this term and
was argued by counsel and thereupon, upon consid-
eration thereof and by stipulation and consent of all
parties, it was Ordered, Adjudged and Decreed as
follows, viz:

That the Court has jurisdiction of the subject mat-
ter and parties hereto.

That the defendants and each of them, their agents,
servants, employees, successors and assigns, be and
they each and all are perpetually enjoined and re-
strained from using or employing, in connection with
the manufacture, advertisement, offering for sale or
sale of any product not the plaintiff's, the word
"Coca-Cola," or any like word, and from using or
employing, in connection with the manufacture, ad-
vertisement, offering for sale or sale of any product not
the plaintiff's, any bottle or other receptacle bearing

— 340 —

v. JAMES McMASTER and BONNIE H. BARGES

or containing in any way, the word "Coca-Cola,"
or any like word, and further from doing act act or
thing, or using any name or names, bottles or re-
ceptacles, which may be calculated or likely to in-
duce the belief that any product, not the plaintiff's
is the product of the plaintiff, and that a Writ of In-
junction issue to the above effect.

That the plaintiff waives an accounting of profits
and damages in the premises, and that the plaintiff
do have and recover from the defendants their costs
and of this proceeding, to be taxed.

Dated October 3, 1916.

HUMPHREY, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga.; Reed <&
Rogers, Chicago, Illinois, For Plaintiff.

— 341 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF FLORIDA

No. 37— EG. R. 25

THE COCA-COLA COMPANY

v.
ANTI-MONOPOLY DRUG STORE.

This cause coming on to be heard upon the mo-
tion of plaintiff for a temporary restraining order,
and the defendant having filed his motion to dis-
miss the bill of complaint, and the same having been
argued and submitted, it is ordered, adjudged and
decreed that said motion to dismiss be and the same
is hereby denied.

And said motion for a temporary restraining order
upon the bill of complaint and the affidavits filed in
support thereof, having been argued and submitted
by counsel for respective parties,

It is ordered, adjudged and decreed, that the said
defendant, Anti-Monopoly Drug Company, a corpora-
tion, its attorneys, officers, servants, agents, employes
and representatives, be and each of them is hereby
restrained, until the further order of this court, from
infringing upon the trade-mark "Coca-Cola," and
the trade rights of the complainant herein, and from
substituting, passing off, or in any way permitting
the passing off, of any product, when Coca-Cola is
called for, that is not the product manufactured, made
and sold by the complainants in this cause; and from
applying to any syrup not manufactured by the com-
plainant the name Coca-Cola; or from applying any

— 342 —

v. ANTI-MONOPOLY DBUG STQEE.

other word or words that is a colorable imitation
thereof; and from using any name, whether nick-
name or otherwise, sufficiently similar to the name
Coca-Cola as applied to any drink so as to cause
misrepresentation or deceit.

Done and ordered this 23rd day of June, 1914.

EHYDON M. CALL, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga. ; R. A.
Bur ford, Ocala, Florida, For Complainant.

— 343 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF FLORIDA

THE COCA-COLA COMPANY, Complainant,

v.
ANTI-MONOPOLY DRUG STORE, INC., Defendant.

FINAL DECREE.

Be It Remembered, That this cause came on for
final hearing upon the testimony submitted, and upon
the stipulation and agreement signed by counsel for
the respective parties, and filed in said cause, and
thereupon, after the due consideration,

It is ordered, adjudged and decreed, as follows,
to wit:

1. That the equities of said cause are with the
complainant, and that the temporary restraining order
made in said cause on the 23rd day of June, A. D.
1914, whereby the said defendant, Anti-Monopoly
Drug Store, Inc., a corporation, its attorneys, offi-
cers, servants, agents, employes and representatives,
and each of them, were restrained from infringing
upon the trade-mark "Coca-Cola," and the trade
rights of the complainant herein; and from substitut-
ing, passing off, or in any way permitting the pass-
ing off, of any product when Coca-Cola is called for,
that is not the product manufactured, made and sold
by the complainant in this cause; and from apply-
ing to any syrup not manufactured by the complain-
ant the name Coca-Cola; or from applying any word
or words that is a colorable imitation thereof; and
from using any name, whether nickname or other-
wise, sufficiently similar to the name Coca-Cola as
applied to any drink so as to cause misrepresenta-
tion or deceit, be and the same is hereby made per-
manent.

— 344 —

v. ANTI-MONOPOLY DRUG STORE.

2. It is further ordered, adjudged and decreed,
that the said defendant pay the costs on this cause

taxed by the clerk of this court at

dollars, for which execution may issue in favor of
said complainant, The Coca-Cola Company, a cor-
poration, and against the said defendant, Anti-Mo-
nopoly Drug Store, Inc., a corporation under the
laws of the State of Florida.

Done and ordered in open court at Ocala, Florida,
on this the 22nd day of January, A. D. 1915.

(Signed) RHYDON M. CALL, Judge.

345 —

THE COCA-COLA COMPANY

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF MISSOURI,

EASTERN DIVISION

No. 4624— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
KBUMMENACHEB DRUG COMPANY, Defendant.

FINAL DECREE. 1

It appearing to the Court that the parties hereto
having consented that the preliminary injunction
heretofore ordered herein may be made perpetual.

It is Ordered, Adjudged and Decreed that the de-
fendant, his agents, servants and employes and each
of them be and they are hereby forever and perpet-
ually enjoined and restrained:

(A) From selling and delivering in response
to calls for Coca-Cola any beverage other than
that made from the Coca-Cola syrup manu-
factured by complainant.

(B) From using any name sufficiently similar
to Coca-Cola as to cause deceit.

(C) From selling or exposing for sale any bev-
erage other than the product of complainant, hav-
ing the peculiar and distinctive color and appear-
ance of complainant's product, or any such ap-
proximation thereof, as may be likely to deceive
the public, without such differentiation as will ef-
fectually prevent the passing off of any product
as and for the product of complainant.

— 346 —

v. KBUMMENACHER DEUd COMPANY

It is further adjudged that the plaintiff have and
recover of said defendant Krummenacher Drug Co. its
costs herein, to be taxed by the clerk under the direc-
tion of the Court, and that execution issue therefor.

Dated at St. Louis, Mo., June 14, 1917.

DAVID P. DYER,
Judge.

The parties hereto hereby consent to the entry of
the above and foregoing decree. The plaintiff waives
profits and damages.

Candler, Thomson & Hirsch, James L. Hopkins,
Attorneys for Plaintiff.

J. M. Lashly, Howard G. Cook, Attorneys for De-
fendant.

— 347

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

September 24, 1917

No. 893

Present: HONORABLE GEORGE A. CARPENTER, District
Judge.

I

THE COCA-COLA COMPANY,

v.
M. THEODOSAKIS.

This cause coming on for further hearing and it
appearing to the court that the defendant was duly
served with process on the 12th day of July, 1917,
and filed no answer to the bill of complaint, and that
on the 22nd day of August, 1917, an order was en-
tered taking the bill of complaint as confessed against
the defendant, which said date is more than thirty
(30) days before the entry of this decree, it is there-
upon Ordered, Adjudged and Decreed as follows:

That the court had jurisdiction of the subject
matter and of the parties to this suit; that the allega-
tions of the bill of complaint are true and that the
equities of the case are with the complainant and
that complainant is entitled to the relief prayed, and
accordingly, that the defendant, his agents, servants,

— 348 —

v. M. THEODOSAKIS

employes, attorneys and assigns, and all acting by or
under his authority be, and they are each and all
perpetually enjoined and restrained from selling, dis-
pensing or supplying to customers or using, preparing,
supplying or selling beverages to customers in re-
sponse to requests for Coca-Cola or otherwise or
plaintiff's product, any other product than the gen-
uine Coca-Cola of plaintiff, and from doing any act
or thing, or using any name, artifice or contrivance
calculated to represent that any product not plaintiff's
genuine Coca-Cola is said product, and that a writ of
perpetual injunction issue accordingly.

That defendant pay the cost of this suit to be taxed,
and that upon taxation plaintiff have execution
thereof.

Enter. CARPENTER,

Judge.

Chicago, Illinois.
September 24, 1917.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Reed & Rogers, Chicago, Illinois,
For Complainants.

I, JOHN H. R. JAMAR, Clerk of the District Court
of the United States of America for the Northern Dis-
trict of Illinois, do hereby certify the above and fore-
going to be a true and correct copy of an order made
and entered in said Court on the 24th day of Septem-
ber, 1917, as fully as the same appears of record in
my office.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court at my office in
Chicago, in said District, this 28th day of August,
A. D. 1922.

(Signed) JOHN H. E. JAMAR, Clerk.
(Seal)

— 349 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

November 2, 1917

No. 929— IN EQUITY

Present: HONORABLE KENESAW M. LANDIS, District
Judge.

THE COCA-COLA COMPANY

v.
PETER MILLER.

This cause coming on for further hearing and it
appearing to the court that the defendant was duly
served with process on the 20th day of August, 1917,
and filed no answer to the bill of complaint, and
that on the 24th day of September, 1917, an order
was entered taking the bill of complaint as confessed
against the defendant, which said date is more than
thirty (30) days before the entry of this decree, it is
thereupon ordered, adjudged and decreed as follows:

That the court had jurisdiction of the subject-
matter and of the parties to this suit; that the allega-
tions of the bill of complaint are true and that the
equities of the case are with the complainant and
that complainant is entitled to the relief prayed, and,
accordingly, that the defendant, his agents, servants,
employes, attorneys and assigns, and all acting by or
under his authority be, and they are each and all

— 350 —

v. PETER MILLER

perpetually enjoined and restrained from selling,
dispensing or supplying to customers or using, pre-
paring, supplying or selling beverages to customers
in response to requests for Coca-Cola or otherwise
for plaintiff's product, any other product than the
genuine Coca-Cola of plaintiff, and from doing any
act or thing, or using any name, artifice or con-
trivance calculated to represent that any product
not plaintiff's genuine Coca-Cola is said product, and
that a writ of perpetual injunction issue accordingly.
That defendant pay the cost of this suit to be
taxed, and that upon taxation plaintiff have execu-
tion thereof.

(Signed) KENESAW M. LANDIS,

Judge.

Chicago, Illinois.
November, 1917.

Candler, Thomson & Hirsch, Atlanta, da. ; Frank F.
Reed, Edw. S. Rogers and Allen M. Reed, Chicago,
111., for Complainant.

I, John H. R. Jamar, Clerk of the District Court
of the United States of America for the Northern
District of Illinois, do hereby certify the above and
foregoing to be a true and correct copy of Decree
made and entered in said Court on the 2nd day of
November, 1917, as fully as the same appears of
record in my office.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court at my office
in Chicago, in said District, this 25th day of August,
A. D. 1922.

(Signed) JOHN H. R. JAMAH,
(Seal) Clerk.

— 351 —

THE COCA-COLA COMPANY

UNITED STATES OF AMERICA, ^

SOUTHEASTERN DIVISION OF THE EASTERN > ss.
JUDICIAL DISTRICT OF MISSOURI.

IN THE DISTRICT COURT OF THE UNITED

STATES, IN AND FOR SAID DIVISION

OF SAID DISTRICT

APRIL TERM, 1916
MONDAY, APRIL 10, 1916

No. 102— IN EQUITY

j

THE COCA-COLA COMPANY, Complainant,

v.
A. R. BEARD, Defendant.

ORDER OF PERMANENT INJUNCTION.

Now on this day come the parties hereto by their
respective solicitors, and by consent of parties, the
Court doth

Order, adjudge and decree that the defendant,
A. R. Beard, his agents, servants and employes, and
each of them, be perpetually enjoined and restrained:

1. From infringing upon the trade rights of the
complainant in and to the trade-mark " Coca-Cola " as
applied to the beverage described in the bill and from
infringing upon the right of the complainant to be
subjected to none but the fair competition in and
about its manufacture and sale of the beverage known
as " Coca-Cola ", and from the further commission of
the acts of substitution described in the bill.

— 352 —

v. A. E. BEAED

2. From selling and delivering in response to re-
quests or orders, written or verbal, for Coca-Cola, any
beverage other than that made from the Coca-Cola
syrup manufactured by the complainant.

3. From using, either verbally or by print or writ-
ing, any name sufficiently similar to the name "Coca-
Cola", or any name applied to any drink, as to cause
deceit of the consumer.

That as to paragraphs numbered 4 and 5 of the
prayer for relief, no relief shall be granted.

(Signed) DAVID P. DYER,

Judge.

UNITED STATES OF AMERICA, ^

SOUTHEASTERN DIVISION OF THE EASTERN Lss.
JUDICIAL DISTRICT OF MISSOURI.

I, Jas. J. O'Connor, Clerk of the District Court of
the United States, in and for the Southeastern Di-
vision of the Eastern Judicial District of Missouri, do
hereby certify that the writing hereto attached is a
true copy of the final order of the court, in Case No.
102 of Coca-Cola Company, Complainant, v. A. E.
Beard, Defendant, as fully as the same remain on file
and of record in said case in my office.

In Witness Whereof, I hereunto subscribe my name
and affix the seal of said Court, at office in the City of
Cape Girardeau in the Southeastern Division of said
District, this 21st day of August, in the year of our
Lord Nineteen Hundred and twenty-two.

JAS. J. 0 'CONNOR,

Clerk of said Court.
By JAS. F. GORDAN,
(Seal) Deputy.

Candler, Thomson & Hirsch, Atlanta, Ga. ; James
Love Hopkins, St. Louis, Missouri; H. E. Alexander,
Cape Girardeau, Mo.,

For Complainant.

— 353 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

September 24, 1917

No. 892

Present: Honorable GEORGE A. CARPKNTKR, District
Judge.

U

THE COCA-COLA COMPANY

v.
N. POURLAKAS.

This cause coming on for further hearing and it
appearing to the court that the defendant was duly
served with process on the 10th day of July, 1917,
and filed no answer to the bill of complaint, and that
on the 22nd day of August, 1917, an order was en-
tered taking the bill of complaint as confessed against
the defendant, which said date is more than thirty
(30) days before the entry of this decree, it is there-
upon ordered, adjudged and decreed as follows :

That the Court has jurisdiction of the subject mat-
ter and of the parties to this suit; that the allegations
of the bill of complaint are true and that the equities
of the case are with the complainant and that com-
plainant is entitled to the relief prayed, and, accord-
ingly, that the defendant, his agents, servants, em-
ployes, attorneys and assigns, and all acting by or

— 354 —

v. N. POURLAKAS

under his authority, be, and they are each and all
perpetually enjoined and restrained from selling, dis-
pensing or supplying to customers or using, prepar-
ing, supplying or selling beverages to customers in
response to requests for "Coca-Cola" or otherwise for
plaintiff's product, any other product than the genu-
ine Coca-Cola of plaintiff, and from doing any act or
thing, or using any name, artifice or contrivance cal-
culated to represent that any product not plaintiff's
genuine Coca-Cola is said product, and that a writ of
perpetual injunction issue accordingly.

That defendant pay the cost of this suit to be taxed,
and that upon taxation plaintiff have execution
therefor.

Enter :

CARPENTER,

Chicago, Illinois, Judge.

September 24, 1917.

IN THE DISTRICT COURT OF THE UNITED STATES OF

AMERICA FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION.

I, John H. R. Jamar, Clerk of the District Court of
the United States of America for the Northern Dis-
trict of Illinois, do hereby certify the above and fore-
going to be a true and correct copy of an order made
and entered in said Court on the 24th day of Sep-
tember, A. D. 1917, as fully as the same appears of
record in my office.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court at my office in
Chicago, in said District, this 28th day of August,
A. D. 1922.

JOHN H. R. JAMAR,
(Seal) Clerk.

C en/idler, Thomson & Hirsch, Atlanta, Ga. ; Reed
(& Rogers, Chicago, Illinois, for Complainant.

THE COCA-COLA COMPANY

UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF KENTUCKY

No. 2869— IN EQUITY

THE COCA-COLA COMPANY,

A Corporation Under the Laws of the State of
Georgia, Complainant,

v.

CHRIS. DORNA, SR., ELZIE WINTER, CLAR-
ENCE WINTER, LINCOLN COOK, MATT
BARRY, MRS. WILLIAM BARRY, JAMES
FARRELL and MRS. JAlVfES FARRELL, De-
fendants.

FINAL DECREE.

This cause came on to be heard at this term,
and thereupon, upon consideration thereof, it was
ordered, adjudged and decreed as follows, viz. :

That the defendants other than Chris. Dorna, Sr.
(the complainant having dismissed the bill as against
said Dorna before final hearing), namely, Elzie Win-
ter, Clarence Winter, Lincoln Cook, Matt Barry, Mrs.
William Barry, James Farrell and Mrs. James Far-
rell and each of them, their agents, servants, asso-
ciates, employes or anyone acting or claiming by,
through or under said defendants be and they are
hereby strictly enjoined, restrained and commanded
to refrain:

From in any way or manner selling or dispensing
the drink and beverage known as Gay-Ola in place
of the drink known as Coca-Cola.

From disposing of Gay-Ola of the same or sub-
stantially similar color to Coca-Cola, except when

— 356 —

v. CHRIS. DORNA, SR., et al.

the same is sold in bottles, receptacles or packages
marked or labeled prominently with the name Gay-
Ola, and designed and intended to be sold and de-
livered to the ultimate consumer in said original
bottle, receptacle or package with said mark or label
still remaining thereon.

The defendants may sell Gay-Ola as Gay-Ola in
a long-necked clear glass bottle, having two annular
ribs and two partially complete such ribs blown
in the body of the bottle ; and having the word * ' Gay-
Ola" in large capital letters blown in the shoulder
thereof and the words "The Improved Cola" in the
body thereof; being also provided with a cap or
crown on which the words "Gay-Ola, It's Better"
are printed in red.

It is further ordered that the complainant recover
its costs of the defendants.

(Signed) A. M. J. COCHRAN,

Judge.

April 9, 1914.

Candler, Thomson & Hirsch, Atlanta, Georgia;
Paxton, Warrington & Seasongood, Cincinnati, 0.,
for Complainant.

357 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRCT

OF TENNESSEE, NORTHERN

DIVISION

February 9, 1917

No. 17— IN EQUITY

THE COCA-COLA COMPANY
JOHN F. HAUPT, JR.

FINAL DECREE.

This cause came on to be heard and finally deter-
mined before the HON. EDWARD T. SANFGRD, Judge,
on the pleadings and proof in the cause; upon con-
sideration of which it is ordered, adjudged and de-
creed as follows:

1. That the plaintiff, The Coca-Cola Company, is
a corporation organized, existing and doing business
under the laws of the State of Georgia, and a citizen
of said State within the meaning of the constitution
and laws of the United States, and the defendant,
John F. Haupt, Jr., is a citizen of the State of Tennes-
see and a resident of the City of Knoxville, in the
Northern Division of the Eastern District of Ten-
nessee.

2. That at the time of the institution of this suit
and for a number of years prior thereto the plaintiff
was engaged in the manufacture and sale of a syrup

— 358 —

v. JOHN P. HAUPT, JR.

used in compounding soft drinks, or soda fountain
and bottled beverages, which syrup and the bev-
erages made therefrom were known and sold under
the name "Coca-Cola" and under that name were
dispensed from soda fountains and in bottles through-
out a large portion of the United States, and that a
considerable trade therein had been established in the
said City of Knoxville; that no other beverage has
been sold throughout the United States under the
name of Coca-Cola than that compounded from the
syrup manufactured by the plaintiff, as aforesaid, and
the exclusive right to the use of said name by the
plaintiff has been acquiesced in by the trade, and
the good will incident thereto is valuable.

3. That at and prior to the date of filing the bill
the defendant has been maintaining unfair competi-
tion against the plaintiff by keeping in the soda foun-
tain in his store a syrup or syrups resembling Coca-
Cola, but not being the genuine Coca-Cola made by
the plaintiff, which had been, under his direction, fur-
nished by his employees to customers calling for
Coca-Cola; and that plaintiff is entitled to an injunc-
tion against the continuance of such unfair competi-
tion and an accounting for the damages sustained on
account thereof as prayed in the bill.

4. It is therefore ordered, adjudged and decreed:

(a) That the defendant be and he is hereby en-
joined and inhibited from hereafter continuing such
unfair competition by the substitution of other syrups
for, or using other syrups instead of, the said Coca-
Cola syrup manufactured and sold by the plaintiff, as
aforesaid, in supplying customers calling for Coca-
Cola.

(b) That the defendant pay all the costs of the
cause, for which execution will issue.

(c) It being suggested that plaintiff may not de-
sire to take a reference for the damages due it on
account of the unfair competition of the defendant in

— 359 —

THE COCA-COLA COMPANY

the past, no order of reference will be entered at the
present time, but such order may be taken hereafter
on application of the plaintiff within thirty days from
the date of the entry of this decree.

Approved for entry.

SANFORD, J.
0. K.

J. B. Sizer, For Plaintiff.

J. A. Fowler, For Defendant.

UNITED STATES OF AMERICA, ^

EASTERN DISTRICT OF TENNESSEE, \ ss.
NORTHERN DIVISION.

I, Horace Van Deventer, Clerk of the United States
District Court in and for the Eastern District of Ten-
nessee, do hereby certify that thd foregoing typewrit-
ing is a true, full, correct and complete copy of the
original Writ of preliminary injunction pendente lite,
and of the Final Decree, on file and remaining of rec-
ord in my office in the cause of The Coca-Cola Co. v.
John F. Haupt, Jr., No. 17 on the Equity Docket of
said Court.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said court at Knoxville,
Tennessee, this 22nd day of August, A. D. 1922.

HORACE VAN DEVENTER, Clerk.

Candler, Thomson & Hirsch, Atlanta, Ga. ; J. B.
Sizar, Chattanooga, Tenn., For Complainant.

— 360 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT

OF VIRGINIA

THE COCA-COLA COMPANY, Complainant,

v.

JAMES HABIB, doing business as HABIB CON-
FECTIONERY CO., Defendant.

This cause came on this day to be heard upon the
Plaintiff's prayer for a temporary injunction, and the
defendant having appeared by Tazewell Taylor, Esq.,
his Counsel, and having admitted in open Court that
this is a suit in which an order of injunction should
be awarded against him, the said defendant; and the
plaintiff thereupon having signified, by its attorney,
Robert W. Shultice, Esq., that it is willing to waive
an accounting against the said defendant of the
profits and damages alleged in said Bill of Com-
plaint upon the granting of the injunction prayed for
in the said Bill, and the plaintiff having thereupon
amended its prayer for a temporary injunction and
having prayed the Court to enter a permanent in-
junction herein, in accordance with the prayer of the
said Bill of Complaint, to which motion for said per-
manent injunction the defendant having formally con-
sented, the Court doth thereupon adjudge, order and
decree that the said defendant, James Habib, doing
business as Habib Confectionery Company, his agents,
servants and employees, and each of them be en-
joined:

First : From infringing upon the trade rights of the
plaintiff, The Coca-Cola Company, and from the fur-
ther commission of the acts of substitution alleged
and described in the said Bill.

— 361 —

THE COCA-COLA COMPANY

Second: From selling and delivering, in response
to requests or orders for Coca-Cola any beverage
other than that made from Coca-Cola syrup manu-
factured by the plaintiff.

Third: From using any name sufficiently similar to
the name Coca-Cola or any name applied to any
drink, so as to cause deceit to the damage of the
plaintiff.

Fourth: From selling any product that is the same
color as Coca-Cola or any such approximation thereof,
in such a manner and way as is likely to cause confu-
sion and deception, or which might be calculated to
induce the belief that the product is the product of
the plaintiff.

The defendant and all of his associates, servants,
clerks, agents, workmen and employees, and each and
every person claiming under, by jor through the said
defendant, are hereby perpetually enjoined and~ re-
strained from doing any of the matters or things here-
inabove prohibited to be done by this injunction
order.

It is further adjudged, ordered and decreed that the
defendant pay the costs of this suit, and that when
the same are paid, that this cause be removed from
the docket of this Court.

(Signed) EDMUND WADDILL, JR.,

U. S. District Judge.
Norfolk, Va., July 29, 1916.
A true copy teste:

JOSEPH P. BRADY, Clerk,
(By) R. P. FLANAGAN, Deputy Clerk.

Candler, Thomson & Hirsch, Atlanta, Georgia,
Robert W. Shultice, Norfolk, Va.,
For Complainant.

— 302

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ALABAMA, SOUTHERN DIVISION

THE COCA-COLA COMPANY, Complainant,

v.

MAGIC CITY BOTTLING & SYRUP COMPANY,
et al., Respondents.

DECREE.

This cause coming on to be heard on the complain-
ant's petition for a temporary writ of injunction
against the respondents, and being submitted upon
proof and argued by counsel for complainant and
respondent, and decision reserved,

It is now ordered, decreed and adjudged by the
Court that the complainant is entitled to the issuance
of a temporary writ of injunction as prayed for.

It is further ordered, decreed and adjudged by the
Court that the respondents, Magic City Bottling and
Syrup Company, the Deacon-Brown Bottling Com-
pany, of Birmingham, Alabama, L. S. Meharg, G. M.
Ray, Julius Marx, H. E. Marx, A. Tedesky and H.
Mauck, and each of them or any of their associates,
clerks, salesmen, servants, agents, workmen, attorneys
and representatives, and all parties claiming or hold-
ing under or through said parties, be and they hereby
are enjoined from using in any form whatsoever the
name " Coca-Cola" or "Fletcher's Coca-Cola" as ap-
plied to any drink.

It is further ordered, decreed and adjudged by
the Court that this injunction is temporary and is
subject to the further orders of the Court.

It is further ordered, decreed and adjudged that
the complainant be and it is hereby required, as a

— 363 —

THE COCA-COLA COMPANY

precedent to the issuance of said injunction, to ex-
ecute a bond in the sum of Five Thousand Dollars
($5,000.00) to the respondents herein, conditioned in
accordance with law, in order to save said respond-
ents harmless from damage that may be sustained by
them by reason of the wrongful or improvident issu-
ance of this injunction, said bond to be approved by
the Clerk of this Court.

It is further ordered, decreed and adjudged that
notice of this injunction shall be given said respond-
ents and each of them either by personal service upon
them or by service upon Perkins Baxter or Samuel
Stern, their attorneys of record. All other matters
reserved.

Ordered, Decreed and Adjudged this the 20th day
of February, 1912.

W. I. GRUBB, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Percy,
Benners & Burr, Birmingham, Alabama, for Com-
plainant.

— 364 —

IN THE UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF OHIO,

EASTERN DIVISION

No. 197— IN EQUITY

THE COCA-COLA COMPANY,

v.
A. J. HIEBER.

DECREE.

This cause came on to be heard at this term and
was argued by counsel, and thereupon, upon consid-
eration thereof, it is ordered, adjudged and decreed
that the defendant, A. J. Hieber, his agents, servants,
clerks, attorneys, and all persons acting by or under
his authority and direction, and all other persons to
whom knowledge and notice of this order may come
are forever strictly enjoined from directly or indi-
rectly selling or attempting to sell to any person or
persons asking for and desiring to purchase the bev-
erage known as "Coca-Cola" manufactured and sold
by the complainant any other beverage or substitute
for said Coca-Cola without first advising such person
or persons that the beverage actually sold by them
is not Coca-Cola, and from substituting any other
beverage for the said Coca-Cola without advising the
purchaser thereof of said substitution and from selling
any beverage other than Coca-Cola under any repre-
sentation, direct or indirect, that the same is Coca-
Cola.

— 365 —

THE COCA-COLA COMPANY

It is further ordered, adjudged and decreed that
the complainant recover of the defendants its costs to
be taxed, and execution may issue therefor.

(Signed) WILLIAM L. DAY, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga.; Chap-
man, Howland & Niman, Cleveland, 0., for Plaintiff.

I

366 —

IN THE UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF OHIO,

EASTERN DIVISION

No. 197— IN EQUITY

THE COCA-COLA COMPANY

v.
B. WISE & J. L. McNEALY.

DECREE.

This cause came on to be heard at this term and
was argued by counsel, and thereupon, upon consid-
eration thereof, it is ordered, adjudged and decreed
that the defendants, B. Wise and J. L. McNealy,
their agents, servants, clerks, attorneys, and all per-
sons acting by or under their authority and direc-
tion, and all other persons to whom knowledge and
notice of this order may come are forever strictly
enjoined from directly or indirectly selling or at-
tempting to sell to any person or persons asking for
and desiring to purchase the beverage known as
" Coca-Cola, " manufactured and sold by the com-
plainant and other beverage or substitute for said
Coca-Cola without first advising such person or per-
sons that the beverage actually sold by them is not
Coca-Cola, and from substituting any other bever-
age for the said Coca-Cola without advising the pur-
chaser thereof of said substitution and from selling
any beverage other than Coca-Cola under any rep-
resentation direct or indirect, that the same is Coca-
Cola,

— 367 —

THE COCA-COLA COMPANY

It is further ordered, adjudged and decreed that
the complainant recover of the defendants its costs
to be taxed, and execution may issue therefor.

WILLIAM L. DAY, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga.; Chap-
man, Rowland & Niman, Cleveland, Ohio, For
Plaintiff.

— 368 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHEASTERN

DIVISION OF THE EASTERN

JUDICIAL DISTRICT

OF MISSOURI

No. 120

THE COCA-COLA COMPANY, Complainant,

v.

EOY M. STOKES and JOHN G. THOMPSON,

doing business as the MALDEN DRUG

COMPANY, Defendants.

Now this day the defendants herein having filed
their answer in response to order to show cause here-
tofore issued herein, upon motion of the complainant
by Harry E. Alexander, its counsel, and on con-
sideration of the bill, the moving affidavits in behalf
of the complainant, and said answer of defendants,
the Court doth order, adjudge and decree that the
defendants, Roy M. Stokes and John G. Thompson,
doing business as the Maiden Drug Company, their
agents, servants and employes, and each of them, be
enjoined and restrained, until further order of this
Court:

1. From infringing upon the trade rights of the
complainant in and to the trade-mark ' ' Coca-Cola, ' ' as
applied to the beverage described in the bill, and
from infringing upon the right of the complainant to

— 369 —

THE COCA-COLA COMPANY

be subjected to none but fair competition in and
about its manufacture and sale of the beverage
known as "Coca-Cola," and from the further com-
mission of the acts of substitution described in the
bill;

2. From selling and delivering in response to re-
quests or orders, written or verbal, for "Coca-Cola,"
any beverage other than that made from the "Coca-
Cola" syrup manufactured by the complainant;

3. From using, either verbally or by print or writ-
ing, any name sufficiently similar to the name "Coca-
Cola," or any name applied to any drink, as to cause
deceit of the consumer;

4. From marketing a product of the same identical,
or similar color, used by complainant in its product
"Coca-Cola";

5. From selling, or exposing ff or sale, any beverage,
other than complainant's product "Coca-Cola," hav-
ing the peculiar and distinctive color and appearance
of complainant's product, or any such approxima-
tion thereof as may be likely to deceive the public,
without any such differentiation as will effectually
prevent the passing off of a spurious product, as and
for the product of complainant.

St. Louis, Missouri,
April 28, A. D. 1917.

— 370 —

,

v. EOY M. STOKES, etc.

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHEASTERN

DIVISION OF THE EASTERN

JUDICIAL DISTRICT

OF MISSOURI

No. 120— INJUNCTION

THE COCA-COLA COMPANY, Complainant,

v.

ROY M. STOKES AND JOHN G. THOMPSON,

doing business as the MALDEN DRUG

COMPANY, Defendants.

Now, on this llth day of October, 1917, this cause
having come on to be heard upon the complaint and
answer, and the proof taken therein, and the Court
having duly considered the same and being fully
advised doth thereon order, adjudge and decree, that
the defendants, Roy M. Stokes and John G. Thomp-
son, doing business as the Maiden Drug Company,
their agents, servants and employes, and each of
them, be perpetually enjoined and restrained:

First: From infringing upon the trade rights of
the complainant in and to the trade-mark "Coca-
Cola," as applied to the beverage described in the
bill, and from infringing upon the right of the com-
plainant to be subjected to none but fair competition
in and about its manufacture and sale of the bever-
age known as "Coca-Cola," and from the further
commission of the acts of substitution described in
the bill;

Second: From selling and delivering in re-
sponse to requests or orders, written or verbal, for

— 371 —

THE COCA-COLA COMPANY

"Coca-Cola," any beverage other than that made
from the "Coca-Cola" syrup manufactured by the
complainant ;

Third: From using, either verbally or by print or
writing, any name sufficiently similar to the name
"Coca-Cola," or any name applied to any drink, as
to cause deceit of the consumer;

It is further ordered that paragraphs Four (4)
and Five (5) of the preliminary order heretofore
made in said cause, be eliminated from this decree
without prejudice to complainant, that part of com-
plainant's bill not being passed upon by the Court.

It is further ordered that complainant have and
recover of and from the defendants its costs and
charges in this behalf expended, and thereof have
execution.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Harry
E. Alexander, Cape Girardeau, Mo., For Com-
plainant.

— 372 —

THE COCA-COLA COMPANY, Complainant,

v.

L. G. FOX and L. G. FOX, doing business as

ELLEEBEE DEUG COMPANY, ZOO

PHAEMACY and FOX AND

LYON, Defendants.

DECREE.

This cause coming "on to be heard before his Honor,
H. G. CONNOR, Judge, at New Bern, and it appearing
that the parties have reached an agreement which
agreement is set forth in a paper writing duly signed
by them, dated September 20th, 1916, a copy of
which is hereto attached and marked Exhibit "A",
incorporated in and made a part of this decree;

It is thereupon, after due consideration, adjudged,
ordered and decreed that the said agreement is hereby
in all respects confirmed and made a decree of this
court, and that the said defendants are hereby per-
petually enjoined and restrained from doing or at-
tempting to do any of the acts, things or matters
which said defendants agreed not to do in said
agreement; and the said defendants are hereby
ordered to do all of those things, acts and matters
which said defendants agreed to do in said agree-
ment;

It is further ordered, adjudged and decreed that
the costs of this action be equally divided between
plaintiff Company and Defendants to be taxed by the
Clerk.

E. G. CONNOR,

Judge Presiding.

— 373 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF

NORTH CAROLINA

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

L. G. FOX and L. G. FOX, doing business as

ELLEEBEE DEUG COMPANY, ZOO

PHARMACY and FOX AND

LYON, Defendants.

This Agreement, made and entered into this 20th
of September, Nineteen Hundred and Sixteen, by
and between The Coca-Cola Company, a corporation
of the State of Georgia, County of Fulton, City of At-
Janta, complainant in the above-stated cause, as party
of the first part, and L. G. Fox as above, defendant in
the above-stated cause, parties of the second part,

Witnesseth:

Whereas, the party of the first part, on the . . . day
of April, 1916, filed its bill of complaint in the above-
styled Court against the parties of the second part,
alleging infringement by parties of the second part of
the trade-mark of party of the first part and unfair
competition, the said bill of complaint being referred
to as a part of this agreement and as setting out the
grounds of complaint made by party of the first part
against parties of the second part:

And Whereas, it is the desire of the parties to the
said suit to settle the same;

Now, Therefore, in Consideration of the relinquish-
ment of any claim party of the first part may have

— 374 —

v. L. G. FOX, et al.

against parties of the second part, or either of them,
for damages on account of the matters and things al-
leged to said bill of complaint, parties of the second
part agree that they and each of them, their clerks,
servants, agents, workmen, employes and attorneys,
and each and every person claiming under, by or
through them, or in any way connected with their
business, will not in any way or manner handle, sell
or dispense any product for and as Coca-Cola that
is not the product of the party of the first part, and
will not sell or expose for sale any beverage other
than the product of the party of the first part, Coca-
Cola, having the same peculiar and distinctive ap-
pearance and color of said product of the party of the
first part, or any such approximation thereof as may
be likely to deceive the public, without such differ-
entiation as will effectually prevent the passing off
of a spurious product as and for the said product
of party of the first part, and will not sell any product
that is not Coca-Cola when Coca-Cola is called for,
either by its proper name Coca-Cola or colorable imi-
tation thereof or nicknames therefor, as for example
Dope and Koke, unless the Courts should decree that
they are not nicknames for Coca-Cola, or any name or
designation commonly applied to the said product of
the party of the first part and intended to designate
the same; and will not use the said name Coca-Cola as
applied to any product except the product of the
Coca-Cola Company. Party of the second part recog-
nizing that Coca-Cola is the valid trade-mark of the
Coca-Cola Company.

It is further agreed that a decree may be entered
in vacation of the Court or in term time in the said
suit, setting out this agreement and confirming the
same. Costs to be exactly shared by the parties
hereto.

— 375 —

THE COCA-COLA COMPANY

In Witness Whereof,- said parties have hereunto
set their hands on the day and dates first above
written.

THE COCA-COLA COMPANY,
By E. R. PRESTON and C. A. DUCKWORTH,
CANDLER, THOMSON & HIRSCH,

Attys. for Plaintiff.

L. G. Fox,
By W. K. JONES,

Atty. for Defendant.

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF

NORTH CAROLINA.

I, LEO D. HEARTT, Clerk of the United States Dis-
trict Court for the Eastern District of North Caro-
lina, do hereby certify that thq foregoing attached
four (4) pages are a true and perfect copy of the
Decree signed by Judge Connor, with agreement be-
tween parties attached thereto, as appears of record
and on file in my said office, in the case of The Coca-
Cola Company v. L. Gr. Fox et al.

In Testimony Whereof I have hereunto set my hand
and affixed my official seal, this 27th day of Octo-
ber, 1916.

LEO D. HEARTT,
Clerk, U. S. Dist, Court.

— 376 —

No. 195— IN EQUITY

THE COCA-COLA COMPANY

v.
F. H. EGGERS, JR.

This cause came on to be heard at this term and
was argued by counsel arid thereupon, upon consid-
eration thereof, it is ordered, adjudged and decreed
that the defendant, F. H. Eggers, Jr., his agents,
servants, clerks, attorneys and all persons by or under
his authority and direction and all other persons to
whom knowledge and notice of this order may come
are forever strictly enjoined from directly or in-
directly selling or attempting to sell to any person
or persons asking for and desiring to purchase the
beverage known as " Coca-Cola," manufactured and
sold by the complainant and other beverage or sub-
stitute for said Coca-Cola without first advising such
person or persons that the beverage actually sold
by them is not Coca-Cola, and from substituting any
other beverage for the said Coca-Cola without advis-
ing the purchaser thereof of said substitution and
from selling any beverage other than Coca-Cola under
any representation direct or indirect, that the same
is Coca-Cola,

It is further ordered, adjudged and decreed that
the complainant recover of the defendants its costs
to be taxed, and execution may issue therefore.

WILLIAM L. DAY, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Chap-
man, Rowland & Niman, Cleveland, Ohio, for Com-
plainant.

— 377 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT

OF KENTUCKY

THE COCA-COLA COMPANY, Complainant,

v.

PHILIP MAZZONI and JOHN MAZZONI, Trading

and Doing Business as MAZZONI &

COMPANY, Defendants.

FINAL DECREE.

This case having been heard by the Court, and the
Court being sufficiently advised, it is now considered
and adjudged as follows:

That the defendants, Philip Mazzoni and John
Mazzoni, trading and doing business as Mazzoni &
Company, and each of them, their agents, servants
and employees, and each of them, be, and they are
hereby, perpetually enjoined from selling and deliv-
ering to any customer in response to requests or
orders for Coca-Cola any beverage other than that
made from Coca-Cola syrup, manufactured by the
complainant and put upon the market under the
name of Coca-Cola.

In all cases where Coca-Cola is asked for by in-
tending purchasers or purchaser, the defendants, and
each of them, their agents, servants and employees
shall not serve to such customer or customers any
other drink in lieu of Coca-Cola without first in-
forming such intending purchaser or purchasers that
the article offered for sale is not Coca-Cola, and de-
fendants are enjoined from selling any other drink
than Coca-Cola as and for Coca-Cola.

The parties hereto shall each pay their own costs
herein, and there shall be no accounting.

— 378 —

v. PHILIP MAZZONI, etc.

UNITED STATES or AMERICA,

V SS

WESTERN DISTRICT OF KENTUCKY.

I, A. G. BONALD, Clerk of the District Court of the
United States, for said Western District of Kentucky,
do hereby certify the above and foregoing to be a
true and complete copy of the Decree entered in said
Court, on the 30th day of March, A. D. 1917, in the
cause wherein Coca-Cola Company is the complain-
ant, and Philip Mazzoni and John Mazzoni, trading,
etc., are defendants, as the same appears from the
original now remaining in my custody and control.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court, this 30th day
of March, A. D. 1917.

A. G. BONALD, Clerk,
By GEORGE W. BONALD, D. C.

Candler, Thomson & Hirsch, Atlanta, Ga.; Sellig-
man & Selligman, Louisville, Ky., for Complainant.

— 379 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DIS-
TRICT OF KENTUCKY

THE COCA-COLA COMPANY, Complainant.

v.

JOE DISCH, doing business as the DIAMOND CAFE,

Defendant.

DECREE.

This case having been heard by the Court and
the Court being sufficiently advised, it is now con-
sidered and adjudged as follows :

That the defendant, Joe Disch, doing business as
the Diamond Cafe, his agents, servants and employes,
and each of them, be, and they are hereby perpetually
enjoined from selling and delivering to any customers
in response to requests or orders for Coca-Cola, any
beverage other than that made from Coca-Cola syrup,
manufactured by the complainant, and put upon the
market under the name of Coca-Cola.

In all cases where Coca-Cola is asked for by intend-
ing purchasers or purchaser, the defendant, his agents,
servants and employes, shall not serve to such custo-
mer or customers any other drink in lieu of Coca-
Cola without first informing such intending purchaser
or purchasers that the article offered for sale is not
Coca-Cola, and defendant is enjoined from selling any
other drink than Coca-Cola as and for Coca-Cola.

The parties hereto shall each pay their own costs
herein, and there shall be no accounting.

WALTER EVANS, Judge.

Candler, Thomson & Hirsch, Atlanta, Georgia;
Selligman & Selligman, Louisville, Ky., For Com-
plainant.

— 380 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DIS-
TRICT OF VIRGINIA

No. 719

THE COCA-COLA COMPANY

v.
COEBURN DRUG COMPANY, Inc.

This cause came on to be heard this day in vaca-
tion of this court, on the Bill of Complaint and affi-
davits filed therewith; on subpoena ad respondendum
duly executed as to defendant, and particularly upon
an agreement between plaintiff and defendant settling
the issues involved in this suit, which agreement is
filed with the papers in this cause, marked exhibit
"Agreement," and was argued by counsel.

Upon consideration whereof and in conformity with
the written agreement referred to between plaintiff
and defendant, it is adjudged, ordered and decreed
that defendant, its agents, servants and employes, and
each of them, be hereby enjoined perpetually —

(1) From infringing upon the trade rights of plain-
tiff and from the further commission of the acts of
substitution described in the Bill of Complaint.

(2) From selling and delivering, in response to re-
quests or orders for Coca-Cola any beverage other
than that made from the Coca-Cola syrup manufac-
tured by your plaintiff.

(3) From using any name sufficiently similar to the
name Coca-Cola, or any name applied to any drink,
as to cause deceit.

— 381 —

THE COCA-COLA COMPANY

(4) From marketing a product of the same iden-
tical or similar color as that used by plaintiff in its
product Coca-Cola for purposes of deceit.

(5) From selling or exposing for sale any bever-
age other than plaintiff's product Coca-Cola having
the peculiar and distinctive color and appearance of
plaintiff's product, or any such approximation thereof
as may be likely to deceive the public, without such
differentiation as will effectually prevent the passing
off of a spurious product as and for the product of
plaintiff.

It is further adjudged, ordered and decreed that
this cause be dismissed at the cost of the defendant.

H. C. MCDOWELL, Judge.
Gandler, Thomson & Hirsch, Atlanta, Georgia;

I

Peters & Lavinder, Bristol, Virginia, For Com-
plainant.

This Agreement, made and entered into this the
29th day of May, 1916, between Coca-Cola Company,
party of the first part, and Coeburn Drug Company,
Inc., party of the second part,

Witnesseth:

That Whereas, there is now pending in the Dis-
trict Court of the United States for the Western Dis-
trict of Virginia, at Abingdon, Virginia, a suit in
which the party of the first part is plaintiff and the
party of the second part is defendant; and

Whereas, said second party is willing to refrain
from the further commission of the acts complained
of in said suit and all matters between said parties in
said suit having been settled,

Noiv, Therefore, It is Agreed, That the said second
party binds itself, its agents, representatives and em-
ployes to refrain from the sale, distribution or use of
any drink as "Coca-Cola" other than the Coca-Cola

— 382 —

v. CQEBUBN DRUG COMPANY, Inc.

manufactured and sold by said first party, and to re-
frain from any and all other acts complained of in the
bill in this cause.

It is further agreed that the court, either in vaca-
tion or in term time, may enter a decree in said
cause permanently enjoining said second party from
the sale, distribution or use of any drink as " Coca-
Cola" other than the product of said first party, and
granting all other relief prayed for in the bill of com-
plaint in said cause, except that no damages are to be
assessed against said party of the second part, de-
fendant in said suit, and said decree further dismiss-
ing said cause at the cost of defendant therein.

In Witness Whereof, the said parties of the first
part and second parts have placed hereunto their
hands and seals this the day and year first above
written.

COCA-COLA COMPANY (Seal.)

By CHAS. H. CANDLER,

President.

COEBURN DRUG COMPANY, INC. (Seal.)

By ,

President.
Attest:

W. A. BANNER,

Secretary Coeburn Drug Co., Inc.

383 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES, EASTERN DISTRICT OF MIS-
SOURI, EASTERN DIVISION

No. 4475— IN EQUITY

THE COCA-COLA COMPANY, and ST. LOUIS

COCA-COLA BOTTLING COMPANY,

Plaintiffs,

V.

ISRAEL SHUCART and JACOB SHUCART,

Defendants.

FINAL DECREE.

Now this day, this cause having come on to be
heard upon final hearing and the Court having con-
sidered the pleadings and proofs herein, upon such
consideration the Court doth

Order, Adjudge and Decree that the defendants,
Israel Shucart and Jacob Shucart, their agents, serv-
ants and employes and each of them be, and they are
hereby forever and perpetually enjoined and re-
strained from infringing upon the trade-mark Coca-
Cola, as the same has been registered in the United
States Patent Office by the plaintiff, The Coca-Cola
Company, and as the same is used upon bottles and
wooden cases by the plaintiff, St. Louis Coca-Cola
Bottling Company, and from infringing upon the
trade rights of the plaintiffs by purchasing or other-
wise acquiring any of the bottles or wooden cases de-
scribed in the bill and bearing the trade-mark Coca-
Cola aforesaid, and from taking the same into their
possession, and from making any use or disposition

— 384 —

v. ISRAEL SHUCART and JACOB SHUCART

of any of such bottles or cases which may now be in
their possession or under their control, and from
making, selling, keeping on hand for sale or offering
f»r sale or in any manner dealing in any beverage
made in imitation or simulation of the color, odor or
taste of the beverage known as Coca-Cola and sold by
the plaintiffs under and by means of the said trade-
mark Coca-Cola, and from selling or offering for sale
any beverage whatsoever with the verbal or written
suggestion that it may be substituted by the dealer
on calls or order for Coca-Cola;

It is Further 'Ordered that the said defendants,
Israel Shucart and Jacob Shucart, deliver up to the
Marshal of this Court all of the above described re-
ceptacles, namely: bottles having the trade-mark
Coca-Cola blown therein or otherwise affixed thereto,
and wooden cases having the name Coca-Cola im-
printed thereon, now in the possession or under the
control of them or either of them.

And the Court doth further refer the cause to
Theodorick E. Bland, as Special Master in Chancery
herein, to take, state and report to the Court an ac-
count of the profits realized by the defendants from
their infringing acts in the premises, and to assess
such damages in the premises as may be proper; and
the said Master is authorized to direct and require
the said defendants to file with him an account of
such matters in the form of debtor and creditor, and
to compel the production before him of such books
and papers as may be necessary in the premises, and
to compel the appearance before him of such wit-
nesses as may be required for the giving of needful
and proper testimony upon said issues.

It Is Further Ordered that the plaintiffs have and
recover from the defendants their costs herein up to
and including the entry of this decree, to be taxed
by the Clerk under the direction of the Court, and
that execution issue therefor.

— 385 —

THE COCA-COLA COMPANY

Dated at St. Louis, Missouri, this 10th day of
June, 1916.

(Signed) DAVID P. DYER, Judge.

1

Candler, Thomson & Hirsch, Atlanta, Georgia;
James Love Hopkins, St. Louis, Missouri, for Plain-
tiffs.

— 386 —

IN THE DISTRICT COURT OF THE UNITED

STATES IN AND FOR THE EASTERN

DISTRICT OF TEXAS, AT TYLER

THE COCA-COLA COMPANY, Complainant,

v.

J. L. MEYER, doing business as CROWN BOT-
TLING WORKS, Defendant.

It is hereby decreed by and between the plaintiff
and defendant in the above-styled cause that on the
hearing of the application for injunction herein at
Jefferson, Texas, on the 7th day of October, 1912, a
temporary injunction may be granted enjoining and
restraining the defendant, his agents, employees and
attorneys in fact, under the name of the Crown Bot-
tling Works, or any other name, from using its labels
or crowns or any crowns, labels or bottles on his
product or on any product similar to that manufac-
tured by The Coca-Cola Company, plaintiff herein, in
such way as to deceive the public and consumers of
such product or products, and cause them to believe
that they are the products of complainant, and that
the said defendant, Meyer, his employees, servants, and
attorneys in fact shall be temporarily enjoined from
making any use of any kind of product similar to the
product usually known as Coca-Cola, and selling it
as Coca-Cola, and that this temporary injunction
shall be thereafter in due course, and without further
notice to us or appearance by us, made perpetual.

It is further agreed that the plaintiff herein 'shall
pay the cost of filing the bill, and that the defendant
shall pay the cost of service of notice.

It is further agreed that service of subpoena
usually required is hereby waived by the 'defendant,

— 387 —

THE COCA-COLA COMPANY

and service accepted, and formal appearance hereby
entered.

(Signed) J. L. MEYER.

J. L. MEYER,

Doing business as Crown Bottling
Works.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Crane &
Crane, Dallas, Texas; //. 0. Head, Sherman, Texas,
for Plaintiff.

— 388 —

IN THE UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF TEXAS

No. 28— EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
D. M. HUDSPBTH, Defendant.

On this the 10th day of November, 1916, it being-
made to appear to the Court that the parties in the
above styled and numbered cause have heretofore on,
to-wit: the 10th day of August, 1916, in writing en-
tered into stipulations filed in the court for the dis-
position of all matters in controversy therein, and in
accordance with said stipulations filed, it is hereby
decreed by the Court that the defendant, D. M. Huds-
peth, doing business as and under the name of Mt.
Pleasant Bottling Works, his associates, salesmen,
clerks, workmen and employees, and all and every
person claiming or holding under or through said de-
fendant, or in any way connected with his business
be and they are hereby perpetually enjoined and re-
strained from in any way or manner selling a product
in any such way as to pass off the same as and for
the product of the complainant, and in using in any
form whatsoever the name "Coca-Cola" as applied
to any drink as to cause deceit and from any other
act in the premises in any manner or form calculated
to deceive and further restraining and enjoining the
defendant, his associates, salesmen, clerks, employees
and all persons claiming or holding under or through
said defendant that they be and are hereby perpetually

— 389 —

THE COCA-COLA COMPANY

enjoined and restrained from in any manner using
the name " Coca-Cola" upon any labels, printed
or lithographed matter, or upon crowns, corks or
bottles used for selling drinks, and from in any way
or form whatsoever using same as applied to any
drink, or from any other act in any manner or form
calculated to deceive.

It further appearing to the Court that besides the
stipulations plaintiff has expressly waived all other
relief prayed for, it is further ordered and decreed
that no damages be recovered against the defendant
except that it is hereby ordered, adjudged and de-
creed by the Court that plaintiff do have and recover
of and from the defendant all costs in this behalf in-
curred, for which execution may issue.

( Signed )v GORDON RUSSELL,

Judge.

Candle r, Thomson & Hirsch, Atlanta, Georgia;
Crane & Crane, Dallas, Texas; H. 0. Head, Sherman,
Texas, for Complainant.

UNITED STATES or AMERICA, 1

FIFTH CIRCUIT, 1 ss.

EASTERN DISTRICT OF TEXAS. J

I, J. E. BLADES, Clerk of the District Court of the
United States for the Eastern District of Texas, do
hereby certify the foregoing pages from 1 to 2, in-
clusive, to be a true and correct copy of the Judg-
ment, in Cause No. 28, on the Equity Docket of said
court, entitled The Coca-Cola Company, Complain-
ants, v. D. M. Hudspeth, doing business as Mt. Pleas-
ant Bottling Works, Defendant, as fully as the same
now appears on file in my office at Texarkana, Texas.

To Certify Which, witness my official hand and the
seal of said court at Texarkana, Texas, in said Dis-
trict, this the 18th of September, A. D. 1922.

J. E. BLADES,

Clerk U. S. District Court, E. D. T.
(Seal) By W. E. CHALKER, Deputy.

— 390 —

IN THE DISTRICT COURT OF THE UNITED

STATES IN AND FOR THE NORTHERN
DISTRICT OF TEXAS, AT DALLAS

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

THE EMPIRE BOTTLING AND
MANUFACTURING COMPANY, Defendant.

On this the 24th day of February, A. D. 1917, the
above styled and numbered cause came on to be heard
on the Bill and Answer, Exhibits and Evidence, and
the Court, after hearing the same and argument of
counsel thereon, is of the opinion that the Complain-
ant is entitled to the relief prayed for.

It is, therefore, ordered, adjudged and decreed by
the Court, that the defendant, Empire Bottling and
Manufacturing Company, and all of its associates,
salesmen, servants, clerks, agents, workmen, em-
ployes, and every person claiming or holding under
or through the said defendant, or in any way con-
nected with the business aforesaid be, and they are
hereby perpetually enjoined and restrained from in
any way or manner making or selling its product in
such way as to pass off the same as and for the
product of the complainant, The Coca-Cola Company,
and from using in any form whatsoever the name
Coca-Cola as applied to any drink manufactured and
sold by it, or from using any name sufficiently similar
to the name Coca-Cola as applied to any drink or
beverage manufactured and sold by it as to cause

— 391 —

THE COCA-COLA COMPANY

deceit and from any other act in the premises in any
manner or form calculated to deceive, that the de-
fendant and its associates, salesmen, servants, clerks
and employes, and all persons claiming or holding
under or through the said defendant, Empire Bottling
and Manufacturing Company, be and the same are
hereby perpetually enjoined and restrained from in
any way or manner using the name Coca-Cola upon
any label or labels or other printed or lithographed
matter, or upon crowns or corks or bottles used for
selling drinks, or from in any way or form whatso-
ever using the name as applied to any drink or bever-
age manufactured and sold by the defendant, and
from any other act in any manner or form calculated
to deceive.

It is further ordered, adjudged and decreed by the
Court, that the complainant, Thfc Coca-Cola Company,
have the sole and exclusive right to the use of the
trade-mark or name "Coco-Cola" in connection with
a drink or beverage, and that the defendant, Empire
Bottling and Manufacturing Company, be in all
things restrained from its use upon any other bottled
drink or beverage except the Coca-Cola manufactured
and bottled under the directions of the complainant.

It is further adjudged and decreed by the Court that
the complainant do have and recover of and from the
defendant, Empire Bottling and Manufacturing Com-
pany, all costs in this behalf expended, for which it
may have its execution.

E. R. MEEKS,

Judge.

Candler, Thomson & Hirsch, Atlanta, Georgia,
M. M. Crane, Dallas, Texas,
for Complainant.

— 302 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DIS-
TRICT OF KENTUCKY

IN EQUITY

APPLICATION FOR INJUNCTION

THE COCA-COLA COMPANY, Complainant,

v.
SEELBACH HOTEL COMPANY, Defendant.

DECREE.

The Complainant, The Coca-Cola Company, and the
defendant, the Seelbach Hotel Company, having stip-
ulated that the verified allegations of the bill of com-
plaint may be taken as true, and this action having
been submitted in chief, and the Court being suffi-
ciently advised, it is considered, ordered cmd de-
creed—

(a) That the defendant, Seelbach Hotel Company,
its agents, servants and employees, and each of them,
be, and they are hereby, enjoined

(1) From infringing upon the trade rights of
the Coca-Cola Company, as in the complaint de-
scribed, and from the further commission of the
acts of substitution as therein described.

(2) From selling and delivering in response
to requests or orders for Coca-Cola, any bever-
age other than that made from the Coca-Cola
Syrup manufactured by the complainant.

— 393 —

THE COCA-COLA COMPANY

(3) From using any name sufficiently similar
to the name of Coca-Cola, or any name applied
to any drink as to cause deceit.

(4) From selling or exposing for sale any bev-
erage simulating the product Coca-Cola without
such differentiation as will effectually prevent
the passing off of a spurious product as and for
Coca-Cola, the product of the complainant.

(b) No accounting of profits or damages in the
premises is required of the defendant.

(c) The defendant will pay the costs of this action.

(d) This action is reserved for such further and
other orders and proceedings as hereafter may be
necessary to uphold and enforce this decree.

(Signed) WALTER EVANS, Judge.
Seen and Approved:
THE COCA-COLA COMPANY, i

Candle r, Thomson & Hirsch,
and Selligman & Selligman,

Its Attorneys.
SEELBACH HOTEL COMPANY,

by Kohn, Bingham, Sloss & Spindle,

Attorneys.

— 394 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF TEXAS

No. 57— IN EQUITY

THE COCA-COLA COMPANY

v.
BAY FITCH.

It being made to appear to the court that the par-
ties hereto have entered into the following stipula-
tions, to wit:

It is hereby stipulated by and between the parties,
plaintiff and defendant, in the above styled cause,
that the plaintiff may have its decree against the de-
fendant, as prayed for, with the exception that no
decree will be entered as an appearance and to fully
authorize the decree above mentioned to be entered
in favor of plaintiff and against the defendant.

It is, therefore, ordered, adjudged and decreed by
the court that the defendant, Ray Fitch, his agents,
servants, employes, successors and assigns, and each
and all of them be and they are hereby perpetually
enjoined and restrained from using in connection
with the manufacture, advertising, offering for sale
or selling any beverage with the words "Coca-Cola,"
or any like word or words, whether alone or in con-
nection with other words or names, and further from
doing any act or thing, or using any name or names,
contrivance, artifice, or device, which may be calcu-
lated to lead or induce the belief that any bottled
product not authorized by plaintiff is Coca-Cola.

— 395 —

THE COCA-COLA COMPANY

It is further ordered, adjudged and decreed by the
court that the plaintiff pay all costs of court, for
which the officers of this court may have their execu-
tion.

GORDON RUSSELL, Judge.

Sherman, Texas. January 16th, 1919.

Candler, Thomson & Hirsch, Atlanta, Georgia,
Crane & Crane, Dallas, Texas,
H. 0. Head, Sherman, Texas,
for Plaintiff.

— 390

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN
DISTRICT OF TEXAS

No. 58— IN EQUITY

THE COCA-COLA COMPANY

v.

J. N. RAYZOR AND J. FRED RAYZOR,
Partners operating as ALLIANCE ICE CO.

It being made to appear to the court that the
parties hereto have entered into the following stipu-
lations, to wit:

It is hereby stipulated by and between the parties,
plaintiff and defendants, in the above styled cause,
that the plaintiff may have its decree against the de-
fendants as prayed for, with the exception that no
decree will be entered for damages. This stipulation
will be treated as an appearance and to fully author-
ize the decree above mentioned to be entered in favor
of plaintiff and against defendants.

It is therefore ordered, adjudged and decreed by
the Court that the defendants, J. N. Rayzor and J.
Fred Rayzor, partners operating as Alliance Ice
Company, their agents, servants, employes, successors
and assigns, and each of them and all be, and they
are hereby perpetually enjoined and restrained from
using in connection with the manufacture, advertis-
ing, offering for sale, or selling any beverage, with
the words, "Coca-Cola" or any like words or names,
and further from doing any act or thing, or using any
name or names, contrivances, artifices, or device,

— 397 —

THE COCA-COLA COMPANY

which may be calculated to lead or induce the belief
that any bottled product not authorized by plaintiff
is Coca-Cola.

It is further ordered, adjudged and decreed by the
court that the plaintiff pay all costs of court, for
which the officers of this court may have their execu-
tion.

GOJBDON RUSSELL, Judge.

Sherman, Texas. January 16th, 1919.

Candler, Thomson & Ilirscli, Atlanta, Ga.,
Crane & Crane, Dallas, Texas,
//. 0. Head, Sherman, Texas,
for Complainant.

398 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN
DISTRICT OF TEXAS

No. 59— IN EQUITY

THE COCA-COLA COMPANY

v.
P. W. HOGAN.

It being made to appear to the Court that the
parties hereto have entered into the following stipu-
lations, to wit:

It is hereby stipulated by and between the parties,
plaintiff and defendant, in the above styled cause,
that the plaintiff may have its decree against the de-
fendant as prayed for; with the exception that no
decree will be entered for damages, and that plaintiff
will pay all costs.

This stipulation will be treated as an appearance
and to fully authorize the decree above mentioned to
be entered in favor of plaintiff and against the de-
fendant.

It is therefore, ordered, adjudged and decreed by
the Court that the defendant, P. W. Hogan, his
agents, servants, employes, successors and assigns
and each and all of them be, and they are hereby
perpetually enjoined and restrained from using in
connection with the manufacture, advertising, offer-
ing for sale, or selling any beverage with the words,
" Coca-Cola " or any like word or words, whether
alone or in connection with other words or names,
and further from doing any act or thing, or using any

— 399 —

THE COCA-COLA COMPANY

name or names, contrivances, artifices, or device,
which may be calculated to lead or induce the belief
that any bottled product not authorized by plaintiff
is Coca-Cola.

It is further ordered, adjudged and decreed by the
Court that the plaintiff pay all costs of Court, for
which the officers of this Court may have their execu-
tion.

W. K. SMITH,

Presiding Judge.

Sherman, Texas. February 13th, 1919.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Crane & Crane, Dallas, Texas,
H. 0. Head, Sherman, Texas,
for Complainant.

I

- 400

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF TEXAS

No. 56— EQUITY

THE COCA-COLA COMPANY

v.

ISAAC EOCHSTEIN, doing business
as CITY BOTTLING WOEKS.

It being made to appear to the court that the
parties hereto have entered into the following stipu-
lations, to wit:

It is hereby stipulated by and between the parties,
plaintiff and defendant, in the above styled cause,
that the plaintiff may have its decree against the
defendant as prayed for, with the exception that no
decree will be entered for damages. This stipulation
will be treated as an appearance and to fully author-
ize the decree above mentioned to be entered in favor
of plaintiff and against the defendants.

It is therefore, ordered, adjudged and decreed by
the court that the defendant, Isaac Eochstein, doing
business as City Bottling Works, his agents, servants,
employes, successors and assigns, and each and all
of them be, and they are hereby perpetually enjoined
and restrained from using in connection with the
manufacture, advertising, offering for sale, or selling
any beverages with the words, " Coca-Cola " or any
like words or names, and further from doing any act
or thing, or using any names or name, contrivances,
artifices, or devices which may be calculated to lead

— 401 —

THE COCA-COLA COMPANY

or induce the belief that any bottled product not au-
thorized by plaintiff is Coca-Cola.

It is further ordered, adjudged and decreed by the
Court that the plaintiff pay all costs of court, for
which the officers of this court may have their execu-
tion.

GORDON RUSSELL, Judge.

Sherman, Texas. January 16th, 1919.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Crane & Crane, Dallas, Texas,
H. 0. Head, Sherman, Texas,
for Complainant.

— 402 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF TEXAS

No. 55— IN EQUITY

THE COCA-COLA COMPANY

v.

J. T. CLAEK AND THEODORE WINNINGHAM,
doing business as RED RIVER MFG. AND
BOTTLING COMPANY.

It being made to appear to the court that the
parties hereto have entered into the following stipu:
lations, to wit:

It is hereby stipulated by and between the parties,
plaintiff and defendants, in the above styled cause,
that the plaintiff may have its decree against the
defendants as prayed for, with the exception that no
decree will be entered for damages. This stipulation
will be treated as an appearance and to fully author-
ize the decree above mentioned to be entered in favor
of plaintiff and against the defendant.

It is therefore ordered, adjudged and decreed by
the court that the defendants, J. T. Clark and Theo-
dore Winningham, doing business as Red River Mfg.
& Bottling Company, their agents, servants, employes,
successors and assigns, and each and all of them be,
and they are hereby perpetually enjoined and re-
strained from using in connection with the manufac-
ture, advertising, offering for sale, or selling any bev-
erage with the words, "Coca-Cola," or any like word
or words, whether alone or in connection with other
words or names, and further from doing any act or

— 403 —

THE COCA-COLA COMPANY

thing, or using any name or names, contrivance, arti-
fice or device, which may be calculated to lead or in-
duce the belief that any bottled product not author-
ized by plaintiff is Coca-Cola.

It is further adjudged and decreed by the court,
that the plaintiff pay all costs of court, for which the
officers of this court may have their execution.

GORDON RUSSELL, Judge.

Sherman, Texas. January 16th, 1919.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Crane & Crane, Dallas, Texas,
//. 0. Head, Sherman, Texas,
For Complainant.

— 404

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN

DISTRICT OF TEXAS

No. 54— IN EQUITY

THE COCA-COLA COMPANY

v.
A. F. CAMEEON.

It being made to appear to the court that the
parties hereto have entered into the following stipu-
lations, to wit:

It is hereby stipulated by and between the parties,
plaintiff and defendant, in the above styled cause,
that the plaintiff may have its decree against the de-
fendant as prayed for, with the exception that no
decree will be entered for damages. This stipulation
will be treated as an appearance and to fully author-
ize the decree above mentioned to be entered in favor
of plaintiff and against the defendant.

It is therefore ordered, adjudged and decreed by
the court that the defendant, A. F. Cameron, his
agents, employes, successors and assigns and each of
them be, and they are hereby perpetually enjoined
and restrained from using in connection with the
manufacture, advertising, offering for sale, or selling
any beverage with the words "Coca-Cola" or any
like word or words or names, and further from doingj
any act or thing, or using any name or names, con-
trivance, artifice or device, which may be calculated
to lead or induce the belief that any bottled product
not authorized by plaintiff is Coca-Cola.

— 405 —

THE COCA-COLA COMPANY

It is further ordered, adjudged and decreed by the
court that the plaintiff pay all costs of court, for
which the officers of this court may have their exe-
cution.

GORDON KUSSELL, Judge.

Sherman, Texas. January 16th, 1919.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Crane & Crane, Dallas, Texas,
//. 0. Head, Sherman, Texas,
For Complainant.

400 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT

OF MICHIGAN, SOUTHERN DIVISION

No. 27— IN EQUITY

THE COCA-COLA COMPANY

v.
DETROIT BASEBALL COMPANY.

Now this day, the parties hereto consenting there-
unto, the Court doth order, adjudge, and decree that
the defendant Detroit Baseball Company, its agents,
servants and employes, and each of them be, and they
are hereby forever and perpetually enjoined and re-
strained from selling and delivering to any person,
in response to orders for " Coca-Cola " (said words
being the Complainant's trade-mark, and registered
by it in the United States Patent Office, certificate
No. 22,406 of January 31st, 1893, and certificate No.
47,189 of October 31st, 1905) any other beverage
than that made by the complainant, The Coca-Cola
Company.

Further ordered that Defendant pay the costs
herein to be taxed by the Clerk under the direction
of the Court and that execution issue therefor.

Dated, Detroit, Michigan.

August 19th, 1913.

(Sd) C. W. SESSIONS,
District Judge, Sitting by Designation.

The parties hereto stipulate and agree that the
foregoing and final decree may be entered herein.

Candler, Thomson & Hirsch,
Geo. B. JerJces, J. L. Hopkins,
Attorneys for Complainants.

Corliss, Leete & Moody,

Attorneys for Defendant.

— 407 —

THE DISTRICT COURT OF THE UNITED

STATES, EASTERN DISTRICT

OF MICHIGAN

No. 25— IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.

CHARLES W. McCORMICK and
JOHN MARKLEIN, Defendants.

Now this day, the parties hereto consenting there-
unto, the Court doth order, adjudge and decree that
the defendants Charles W. McCormick and John
Marklein, their agents, servants and employes, and
each of them be, and they are hereby forever and
perpetually enjoined and restrained from selling and
delivering to any person, in response to orders for
Coca-Cola (said words being complainant's trade-
mark, and registered by it in the United States Patent
Office, certificate No. 22,406 of Jan. 31st, 1893, and
certificate No. 47,189 of Oct. 31st, 1905) any other
beverage than that made by the complainant, The
Coca-Cola Co.

Further ordered that Defendants pay the costs
herein to be taxed by the Clerk under the direction
of the Court and that execution issue therefor.

C. E. SESSIONS,

District Judge, Sitting by Designation.
The parties hereto stipulate and agree that the
foregoing and final decree may be entered herein.
Candlcr, Thomson & Hirsch,
Geo. B. Yerkes, J. L. Hopkins,

Attorneys for Complainant.
A. J. Groesbeck,

Attorney for Defendants.

Filed August 19th, 1913,

ELMER W. VOORHEIS, Clerk,

By CARRIE DAVISON, Deputy Clerk.

— 408 —

Present: The HONORABLE ARTHUR J. TUTTLE, United
States District Judge.

No. 40

THE COCA-COLA COMPANY, Plaintiff,

v.
EDWARD McBRIDE, et al., Defendants.

Now this day, this cause coming on to be heard
upon the exceptions of the plaintiff to the report of
the Master herein, upon consideration of said excep-
tions and the arguments of counsel thereon, the
Court being duly advised doth

Order, adjudge and decree as follows:

1. That said exceptions be sustained.

2. That The Coca-Cola Company, plaintiff herein,
a corporation organized, existing and doing business
under the laws of the State of Georgia, has been en-
gaged since the year 1892 in the manufacture and
sale of a certain beverage known as and by the trade-
mark consisting of the compound word Coca-Cola.

3. That said trade-mark was registered by said
plaintiff in the Patent Office of the United States on
January 31st, 1893, by certificate No. 22,406, and on
October 31, 1905, by certificate No. 47,189, and is the
property of the said plaintiff.

31/2- That said trade-mark has not been infringed
by defendants.

4. That the plaintiff has expended large sums of
money in advertising the said beverage under the

— 409 —

THE COCA-COLA COMPANY

said trade-mark and has built up a large trade be-
tween the State of Georgia and each of the other
states of the United States, and the good will of such
trade and the said trade-mark is each of a value in
excess of Three Thousand ($3000) Dollars, exclusive
of interest and costs.

5. That said beverage made by plaintiff and desig-
nated by said trade-mark "Coca-Cola" is of a dis-
tinctive and nonfunctional color, by which color it is
known to the trade and consumers.

6. That prior to the filing of the Bill of Complaint
herein the defendants did, within the jurisdiction of
this court, prepare for sale and sell a beverage col-
ored in imitation of plaintiff's above-described bev-
erage and similar thereto in taste, said defendants
vending the same in bottles similar in general form
and appearance to the bottlete in which plaintiff's
"Coca-Cola" had been and was being sold, and that
said bottles so used by defendants were -not marked
or branded in any way and were provided with me-
tallic caps also not marked or branded; which said
acts of the defendants constituted unfair and unlaw-
ful competition with the plaintiff.

7. That by their said acts the defendants have
diverted to themselves profits to which the plaintiff
was entitled, and have occasioned loss and damages
to the plaintiff.

8. That the defendants Edward McBride, Charles
M. Earl, and Daniel J. Pollard, their agents, servants
and employees and each of them be, and they are
hereby, forever and perpetually enjoined and re-
strained from the further commission of the acts
hereinbefore described, and from passing off any
spurious beverage or syrup as and for the "Coca-
Cola" of the plaintiff, and from employing any
trick, artifice or device by way of passing off any
spurious article as and for the "Coca-Cola" of the
plaintiff, and from instituting, carrying on or insti-
gating any unfair competition with the plaintiff in

— 410 —

v. EDWARD McBRIDE, et al.

relation to the plaintiff's established trade and good
will in its said product "Coca-Cola."

9. That this cause be, and it is hereby referred to
William S. Sayres, .Jr., Standing Master of this
Court, to take, state and report to the Court an ac-
count of the profits and damages herein, with the
usual power in said Master to compel the attendance
of witnesses, the production of books and papers, and
the making by defendants of an account in the form
of debtor and creditor.

10. That the plaintiff have and recover of defend-
ants its costs herein up to the time of this decree, to
be taxed by the Clerk under the direction of the
Court, and that execution issue therefor.

Candler, Thomson & Hirsch, Atlanta, Georgia,
James Love Hopkins, St. Louis, Missouri,
For Plaintiff.

UNITED STATES or AMERICA, )
EASTERN DISTRICT OF MICHIGAN, j k

I, ELMER W. VOOR-HEIS, Clerk of the District Court
of the United States for the Eastern District of
Michigan, do hereby certify that the above and fore-
going is a true copy of Final Decree in the therein
entitled cause as the same appears on file and of
record in my office; that I have compared the same
with the original, and it is a true and correct tran-
script therefrom and of the whole thereof.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said court, at Detroit, in
said District, this 24th day of August, in the year of
our Lord one thousand nine hundred and twenty-two,
and of the Independence of the United States of
America the one hundred and forty-seventh.

(Sd) ELMER W. VOORHEIS, Clerk.
By CARRIE DAVISON, Deputy Clerk.

— 411

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DIS-
TRICT OF VIRGINIA

IN EQUITY

THE COCA-COLA COMPANY, a corporation duly
organized and existing under the laws of the
State of Georgia, and having its principal place
of business in the City of Atlanta, State of
Georgia, Complainant,

v. »
STROLE DRUG COMPANY, INCORPORATED, a

corporation duly organized and existing under
the laws of the State of Virginia and having its
principal place of business in the City of Nor-
folk, State of Virginia, and J. LOROM STROLE,
Defendants.

On motion of the plaintiff by Counsel, and with the
consent of the defendants, given by their Solicitors
in Open Court, this cause is reinstated upon the
docket of the Court, less than a year having elapsed
since it was dropped from the trial calendar.

On motion of the plaintiff by Counsel, which motion
was consented to by Bowden & Heard, Counsel for J.
Lorom Strole in open Court, leave is given the plain-
tiff to amend its Bill of Complaint, by making the
said Lorom Strole a party defendant to said Bill, and
such leave being granted, the Bill was thereupon
amended, and the said J. Lorom Strole was made a
party defendant.

— 412 —

v. STROLE DRUG COMPANY, INC., etc.

And thereupon, this cause came on this day to be
heard upon the complainant's Bill of Complaint filed
in this Court at Norfolk, Virginia, on the 30th day of
July, 1913, which Bill is duly sworn to by Charles H.
Candler, and which has been amended as aforesaid.

And the court having carefully considered the mat-
ters set out in said Bill, and the prayer of the com-
plainant for a permanent injunction as hereinafter
set out.

And the defendant Strole Drug Company, Inc., by
its Solicitors of Eecord having, upon leave given it,
which leave was concurred in by J. Lorom Strole, by
counsel, withdrawn the motion to dismiss, heretofore
filed in these proceedings and the two defendants hav-
ing signified that they do not desire to answer or other-
wise plead to the complainant's Bill, the Court, on
motion, doth thereupon adjudge, order and decree
that the defendants, Strole Drug Company, Incor-
porated, its officers, salesmen, servants, clerks, agents,
workmen, employees, attorneys and every person
claiming under, by or through the said defendant, or
in any way connected with it, and J. Lorom Strole, are
hereby enjoined and restrained from hereafter in any
manner selling a product as and for Coca-Cola, or from
in any way or manner passing off any product as
and for Coca-Cola that is not the product of the com-
plainant, when Coca-Cola is called for at a soda foun-
tain or fountains, or any other place or places where
soft drinks are dispensed by them or either of them,
and also from selling for Coca-Cola any product
which is not the Coca-Cola when Coca-Cola is called
for and from .using said name of Coca-Cola as ap-
plied to any product except the product of the com-
plainant, The Coca-Cola Company, (a corporation) of
Atlanta, Georgia.

And the Court doth further adjudge, order and
decree that the defendants shall pay the taxed costs

— 413 —

THE COCA-COLA COMPANY

of this rait, and that after the payment rf «h «*
earn* shall be removed from the docket.

KI-M •ADMIX J«.

"**•

, Thorn*** d II

orfolk, Va. for ComphL

— 414 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT

OF MICHIGAN

No. 26

THE COCA-COLA COMPANY, Complainant,

v.
EIVERVIEW PARK COMPANY, Defendant.

Present: The HONORABLE CLARENCE W. SESSIONS,
United States District Judge, Sitting by Desig-
nation.

It Appearing to the Court from the stipulation filed
herein that the parties hereto have consented there-
unto,

The Court Doth Order, Adjudge and Decree that
the defendant, Riverview Park Company, its officers,
directors, stockholders, agents, servants and em-
ployees, and each of them, be and they are hereby
forever and perpetually enjoined and restrained from
selling or advertising for sale under the name "Coca-
Cola" any beverage other than that manufactured
and sold as Coca-Cola by the complainant, and from
selling and delivering in response to orders, verbal or
written, for Coca-Cola any beverage other than the
Coca-Cola manufactured and sold by the complainant;
the complainant having waived an accounting of
profits or damages herein.

This decree is final and the court directs the costs
hereof to be taxed by the clerk under the direction of
the Court to be adjudged against the defendant.

— 415 —

THE COCA-COLA COMPANY

UNITED STATES OF AMEKICA,

V gg

EASTERN DISTRICT or MICHIGAN.

I, ELMER W. VOORHEIS, Clerk of the District Court
of the United States for the Eastern District of Mich-
igan, do hereby certify that the above and foregoing
is a true copy of Final Decree in the therein entitled
cause as the same appears on file and of record in my
office; that I have compared the same with the origi-
nal, and it is a true and correct transcript therefrom
and of the whole thereof.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said Court, at Detroit, in
said district, this 24th day of August, in the year of
our Lord one thousand nine hundred and twenty-two,
and of the Independence of the United States of
America the one hundred and forty-seventh.

(Sd) ELMER JW. VOORHEIS, Clerk.
By CARRIE DAVISON,

Deputy 'Clerk.

Candler, Thomson & Hirsch, Atlanta, Ga. ; James
Love Hopkins, St. Louis, Missouri, for Complainant.

— 410 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DISTRICT
OF VIRGINIA, CONTINUED AND
HELD AT HARRISONBURG, VIR-
GINIA, ON JULY 7, 1916

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

I. L. FLORY, Doing Business under the Name of
ELKTON BOTTLING COMPANY, Defendant.

The complainant, the Coca-Cola Company, having
heretofore given notice, which was duly served upon
the defendant, I. L. Flory, that it would, on the
6th day of June, 1916, move the Court at its place
of session at Harrisonburg, Virginia, for an award
of the injunction hereinafter decreed, and the said
motion having, by consent of parties, been continued
until this date, and said complainant, by counsel,
having tendered its bill of complaint against the said
defendant, together with sundry affidavits and ex-
hibits in support of the allegations of said bill, and
moved the Court for the award of an injunction as
prayed in said bill; the defendant, by counsel, asked
leave to file his answer to said bill, which leave being
granted, said answer was thereupon accordingly filed ;
and, thereupon, the complainant and the defendant
having agreed that the cause shall be finally heard
upon the said bill, answer, affidavits and exhibits (the
affidavits being treated as depositions), and the de-
fendant having by his said answer indicated that

— 417 —

THE COCA-COLA COMPANY

he does not desire to contest the said injunction, the
above-entitled cause came on this 7th day of July,
1916, to be heard on said bill, answer, affidavits and
exhibits, and was argued by counsel;

Upon consideration whereof, the Court being of
opinion that the complainant is entitled to the re-
lief prayed for, it is accordingly adjudged, ordered
and decreed that said defendant, I. L. Flory, his
agents, servants, employes, and each of them, be
and are hereby enjoined and restrained from using,
in connection with the manufacture, advertising, of-
fering for sale or sale of any beverage, the name
"Coca-Cola," or any like word or words, whether
alone or in connection with other words or names,
and further, from doing any act or thing or using
any name or names, contrivances, artifice or device
which may be calculated to represent or induce the
belief that any bottled product, not authorized by
the complainant, is Coca-Cola; and that said de-
fendant deliver up to the clerk of this Court, or to
the complainant, any cap, crown, bottle, label and
any and all property in his possession or under con-
trol having the trade-mark name Coca-Cola thereon.

And it is further ordered and decreed that each
party pay its own costs.

And all matters in controversy in this cause having
been finally determined, it is ordered to be stricken
from the docket of the Court.

A Copy: Teste.

FRANK C. STIPE,

Deputy Clerk.

Candler, Thomson & HirscJi, Atlanta, Ga.; D. 0.
Dechert, Harrisonburg, Va., for Complainant.

— 418 —

IN THE DISTRICT COURT OF THE UNITED

STATES, EASTERN DISTRICT

OF WISCONSIN

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
HENRY SPERBER, Respondent.

DECKEE AND INJUNCTION.

Be It Remembered, that this day this cause com-
ing on upon the agreement and stipulation of the par-
ties thereto, by their respective counsel, upon the
said agreement and stipulation, and upon complain-
ant's bill herein, and upon motion of complainant's
counsel,

It is Ordered, Adjudged and Decreed, that the said
Henry Sperber, and all persons acting by or under
his authority and direction, and all persons to whom
knowledge and notice of this order may come, be and
they hereby are perpetually restrained and enjoined
from selling or attempting to sell to any person or
persons asking for and desiring to purchase the bev-
erage known as " Coca-Cola" manufactured and sold
by the complainant, any other beverage or substitute
for said Coca-Cola without first advising such person
or persons that the beverage actually sold to them is
not Coca-Cola; from substituting any other beverage
for the said Coca-Cola without advising the pur-
chasers thereof, of said substituting; and from selling
any beverage other than Coca-Cola under any repre-
sentation direct or indirect that the same is Coca-
Cola.

— 419 —

THE COCA-COLA COMPANY

It is further Ordered, Adjudged and Decreed that
the respondent pay to the claimant, his costs in this
action taxed, by agreement of the parties, at $50.00.
Dated this 31st day of December, 1912.

(Signed) F. A. GEIGER,

District Judge.
Eastern District of Wisconsin.

Candler, Thomson & Hirsch, Atlanta, Georgia; E. J.
Henning, Milwaukee, Wisconsin, for Complainant.

— 420 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT
OF OHIO, WESTERN DIVISION

No. 2319— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
H. DUNN, Respondent.

OKDER.

Be it remembered that this day this cause com-
ing on to be heard upon the motion of the complainant
for a temporary injunction against the respondent,
came the complainant by its attorneys and the re-
spondent in person and by his attorneys, and said
motion was heard and submitted upon testimony ad-
duced in open Court and upon argument of counsel.
The Court being fully advised in the premises finds
that said temporary injunction should issue as prayed
for in the bill of complaint.

Wherefore it is ordered that said H. Dunn, the re-
spondent herein, his agents, servants, clerks and at-
torneys, and all persons acting by or under his au-
thority and direction and all other persons to whom
knowledge and notice or this order may come, be and
they are hereby restrained and enjoined from selling,
or attempting to sell, to any person or persons asking
for and desiring to purchase the beverage known as
Coca-Cola manufactured and sold by the complainant,
any other beverage or substitute for said Coca-Cola,
without first advising such person or persons that
the beverage actually sold to them is not Coca-Cola;
from substituting any other beverage for the said

— 421 —

THE COCA-COLA COMPANY

Coca-Cola without advising the purchasers thereof
of said substitution; and from selling any beverage
other than Coca-Cola under any representation, direct
or indirect, that the same is Coca-Cola until the hear-
ing of this cause or the further order of this Court.

It is further ordered that the costs of the hearing
on said motion be assessed against and paid by the
respondent, and in default of payment that execution
issue therefor.

It is further ordered that the complainant give bond
with good and sufficient surety, to be approved by
the clerk of this Court, in the penal sum of $500.00,
securing the said respondent against all loss or dam-
age which may result from the issue of this order if
it should finally be determined that the same was im-
properly issued, or that may be awarded to him by
reason of the granting of this o^der. And it is fur-
ther ordered that the bond given on the granting of
the restraining order in this case be released, and the
bond herein ordered to be given shall stand in its
stead.

To all of the above orders the respondent by his at-
torney duly excepted immediately and at the time
said orders were made.

(Signed) JOHN M. KILLETTS,

District Judge.

Filed April 17th, 1912.

— 422 —

v. H. DUNN

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF OHIO, WESTERN DIVISION

No. 2319— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
H. DUNN, Eespondent.

DECREE.

This cause this day came on for hearing upon the
motion of the complainant for a final decree, and it
being shown to the court that the respondent has been
served with notice of said motion, and respondent not
appearing in court, it is ordered that the restraining
order heretofore granted herein be, and the same
hereby is, made final and permanent, and it is there-
fore further ordered that the said respondent, H.
Dunn, his agents, servants, clerks and attorneys and
all persons acting by or under his authority or direc-
tion, be, and they hereby are, forever restrained and
enjoined from selling or attempting to sell to any
person or persons asking for and desiring to purchase
the beverage known as Coca-Cola, manufactured and
sold by the complainant, or any other beverage or
substitute for said Coca-Cola, without first advising
such person or persons that the beverage actually
sold to them is not Coca-Cola; from substituting any
other beverage for the said Coca-Cola; without advis-
ing the purchasers thereof of said substitution; and
from selling any beverage other than Coca-Cola under

— 423 —

THE COCA-COLA COMPANY

any representative, direct or indirect, that the same
is Coca-Cola.

And it is further ordered that a copy of this de-
cree, certified by the hand of the clerk and the seal
of the court, be served upon the respondent, or if said
respondent cannot be found, then upon his attorney
of record, R. G. Brown, of Memphis, Tennessee, by
mailing a copy to said Brown, addressed to him at
Memphis aforesaid, by United States Mail, registered
letter.

(Signed) JOHN M. KILLETS,

District Judge.

Candler, Thomson & Hirsch, Atlanta, Georgia;
Brown, Geddes, Schmettan & Williams, Toledo, Ohio,
for Complainant.

I

— 424 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF

MISSISSIPPI

IN EQUITY

THE COCA-COLA COMPANY
v.

MISSISSIPPI BOTTLING & MANUFACTURING

COMPANY.

DECREE Pro Confesso.

It appearing to the court that the bill in the above
cause was filed in this court on the 1st day of July,
A. D. 1912, and that subpoena was duly issued and
served on the defendant herein, and that no appear-
ance has been entered by Mississippi Bottling &
Manufacturing Company, the defendant herein, and
also that no answer, plea or demurrer has been, filed,
and that an order taking the bill as confessed was
duly entered in the order book on the 1st day of Sep-
tember, 1912, in the office of the clerk of this court,
and no proceeding has been taken by the defendant
since the entry of said order, and more than thirty
days have elapsed since entering the order pro con-
fess o.

It is Hereby Ordered, Adjudged and Decreed that
the Mississippi Bottling & Manufacturing Company,
its associates, salesmen, servants, clerks, agents, work-
men, employes and all claiming or holding under or
through said defendant be perpetually enjoined and
restrained from in any way or manner making or sell-
ings its product in such a way as to pass off the same

— 425 —

THE COCA-COLA COMPANY

as and for the product of The Coca-Cola Company
and from using in any form or manner or in any
way whatsoever the name Coca-Cola, as applied to
any drink except the drink of The Coca-Cola Com-
pany, and from doing any acts in any manner or
form calculated to deceive.

It is Further Ordered, Adjudged and Decreed that
the defendant deliver up to this court within thirty
days from the date of this order, any and all labels
in its possession, whether or not the same be at-
tached to containers or not, which labels bear the
name Coca-Cola or the name in association with any
other words, and all of its product made in a form
sufficiently similar to the product of The Coca-Cola
Company as to cause deception.

It is Further Ordered, Adjudged and Decreed that
the Mississippi Bottling and Manufacturing Com-
pany, its associates, salesmen, servants, clerks, agents,
workmen, employes, and all claiming or holding under
or through the said defendant, be perpetually en-
joined from manufacturing, offering for sale and
advertising a product and selling it under the name
of Coca-Cola or a colorable imitation thereof, and
from manufacturing or offering for sale or advertis-
ing a product so similar to the product of The Coca-
Cola Company in general appearance, color and con-
sistency as to cause deceit.

This cause is hereby referred to W. H. Cook as
special master, he being appointed as such for special
fitness and convenience of the Court, who will hear
proof and make report at the next regular term of
the Court upon the following point: What damages
have been sustained by complainant, The Coca-Cola
Company, on account of the Mississippi Bottling &
Manufacturing Company having sold a product that
is not Coca-Cola under and by the name of Coca-
Cola, or having sold a product that is not Coca-Cola
when Coca-Cola is called for or having sold a product

— 426 —

v. MISSISSIPPI BOTTLING & MFG. CO.

sufficiently similar to Coca-Cola as to be liable to
cause deception.

The Special Master will take proof on said order
of reference at such times and places as might suit
the convenience of himself and the parties to the
cause, and due notice of all hearing will be given to
the parties of their counsel in interest unless the
times and places thereof be fixed by consent.

The defendant, the Mississippi Bottling & Manu-
facturing Company, will pay the costs of the cause.

Candler, Thomson & Plirsch, Atlanta, Ga. ; Sullivan
& Conner, Hattiesburg, Miss., for Plaintiff.

427 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES, EASTERN DISTRICT OF MIS-
SOURI, EASTERN DIVISION

No. 4288— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
CHARLES A. OTTINGER and L. C. DAGGETT,

Defendants.

FINAL DECREE.

Now this day, the parties hereto having consented
by stipulation in writing to the entry of this decree,
the Court doth

Order, Adjudge and Decree, That the Defendants,
Charles A. Ottinger and L. C. Daggett, their agents,
servants and employes, and each of them be and they
are hereby forever and perpetually enjoined and
restrained from selling and delivering to any person,
in response to orders for Coca-Cola any other bev-
erage (whether in the form of syrup or carbonated)
than made and sold by the Complainant, The Coca-
Cola Company, or its licensees, under the trade-mark
Coca-Cola as the same has been registered by the
Complainant in the United States Patent Office, Cer-
tificate No. 22,406 of January 31st, 1893, and Certifi-
cate No. 47,189 of October 31st, 1905; which said
words "Coca-Cola" this Court finds to be and con-
stitute a lawful, valid and subsisting trade-mark,
which is the sole and exclusive property of the Com-
plainant.

Further ordered that Defendants pay the costs

— 428 —

v. CHAELES A. OTTINGER and L. C. DAGGETT

herein to be taxed by the Clerk under the direction of
the Court and that execution issue thereof.

DAVID P. DYER,

District Judge.

The parties hereto stipulate and agree that the
foregoing and final decree may be entered herein.

Candler, Thomson & HirscU, James L. Hopkins,
Attorneys for Complainant.

Robt. L. McLaran, Attorney for Defendants.
Filed and entered April 27, 1914.

— 429 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT

OF WEST VIRGINIA, AT CHARLESTON

IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.

P. A. GEORGE, IloMER H. GEORGE and

GEORGE A. M I LLKK, doing business as

P. A. GEORGE & COMPANY,

Defendants.

This day The Coca-Cola Company, a corporation,
by French and Easley, its counsel, presented its bill,
duly verified, which has heretofore been filed in the
Clerk 's office of this Court, at Bluefield, praying for
an injunction against said defendants, enjoining and
restraining them from the acts complained of in
said bill; and also filed a notice to said defendants
duly accepted by their counsel, of complainants' in-
tention to apply for said injunction on this day.

The said defendants appeared by Thomas W. Reed,
their counsel, and asked leave to file, and did file
their answer, duly verified, to which the complain-
ant replied generally. And in said answer, defend-
ants moved to dismiss said bill on the ground that
the Court is without jurisdiction of the matters and
things contained therein; which motion the Court
doth overrule, and it is so ordered.

And in support of its said motion, the complainant
asked leave to file, and did file the affidavits of
Charles H. Candler, S. C. Dobbs, H. B. Pierce, W. B.
Stewart, W. L. Sams, Charles C. Ross and H. C.

— 430 —

v. P. A. GEORGE, et al.

Fuller, with the accompanying exhibits; and the de-
fendants asked leave to file, and did file the affidavit
of J. E. Johnson.

And it being made to appear upon the said bill of
complainant and its said affidavits, and the said
answer and affidavits filed by said defendants as
aforesaid, that an injunction preliminary to the final
hearing is proper, enjoining the defendants herein
from the acts complained of and threatened to be
committed,

Therefore, complainant's application for such pre-
liminary injunction is granted, upon its giving bond,
with a good and sufficient surety to be approved by
the Clerk of this Court, at Bluefield, in the penal
sum of $1,000.00, securing the said defendants against
all loss or damages which may result from the issuing
of said order, if it should be finally determined that
the same was improperly issued, or that may be
awarded to them by reason of the granting of said
order.

Now, therefore, it is ordered; that the said P. A.
George, Homer H. George and George A. Miller,
doing business as P. A. George & Company, your
agents, servants and employes, and all other persons
acting by or under your authority or discretion be,
and you are hereby specially restrained and enjoined
until the further orders of this Court :

First: From selling and delivering, in response to
requests or orders for Coca-Cola, any beverage other
than that made from the Coca-Cola syrup, manufac-
tured by complainant;

Second: From using any name sufficiently similar
to the name Coca-Cola, or any name applied to any
drink as to cause deceit;

Third: From infringing upon the trade rights of
complainant in and about the use of said name, as
well as of said product, and from substituting and
selling any other beverage or drink therefor. And

— 431 —

THE COCA-COLA COMPANY

the defendants waived service of a formal writ of
injunction herein.

Dated at Charleston, in the Southern District of
West Virginia, this the 6th day of July, 1916.

• BENJAMIN F. KELLER,
District Judge, Southern District
of West Virginia.

— 432 —

v. P. A. GEORGE & COMPANY, et al.

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT

OF WEST VIRGINIA

IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.
P. A. GEORGE & COMPANY, et al., Defendants.

This day came again the parties by their Attorneys,
and the parties hereto having entered into an agree-
ment to the effect that the Defendants, P. A. George
& Company, will not hereafter dispense to any of
their patrons or customers calling for "Coca-Cola" at
their fountain or otherwise, any other drink, or com-
bination of syrups or drinks, claiming or holding out
the same to be Coca-Cola, and will not in their trade
substitute any drink of like character and appear-
ance for Coca-Cola to persons calling for Coca-Cola
at their fountain, or other place in the store, and will
hereafter dispense at their place of business, and
through their fountain only the product of the Plain-
tiff known as "Coca-Cola," to all patrons and cus-
tomers calling for the same, and will in good faith
abstain from all substitution or other products or
drinks to customers desiring or calling for Coca-Cola,
and will especially not dispense from their Coca-
Cola containers at their fountain or fountains, any
other product or drink other than the Coca-Cola
manufactured by the Plaintiff, the Court doth there-
fore by consent and agreement of parties, ratify and
confirm said agreement as a compromise agreement
of record herein.

— 433 —

THE COCA-COLA COMPANY

And thereupon, on motion of the Plaintiff, the above
and foregoing is made the order of this Court, and the
injunction heretofore awarded in this cause is dis-
solved, and the Plaintiff's Bill is dismissed, and this
cause is ordered retired from the docket.

We agree to the entering of the above consent
decree.

THE COCA-COLA COMPANY,

By Candler, Thomson & Hirsch, Attorneys for
Plaintiff.

P. A. GEORGE & COMPANY,

By Tlws. H. Read, Attorney for Defendant.

— 434 —

IN THE DISTRICT COURT OF THE UNITED
STATES, DISTRICT OF INDIANA

No. 44— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
EDWARD FERGER, Defendant.

FINAL DECREE.

Now this day, the parties hereto having consented
by stipulation in writing to the entry of this decree,
the Court doth

Order, Adjudge and Decree that the defendant,
Edward Ferger, his agents, servants and employees,
and each of them be and they are hereby forever and
perpetually enjoined and restrained from selling and
delivering to any person in response to orders for
Coca-Cola any other beverage (whether in the form
of syrup or carbonated) than that made and sold by
the complainant, The Coca-Cola Company, or its
licensees, under the trade-mark Coca-Cola as the same
has been registered by the complainant in the United
States Patent Office, Certificate No. 22,406 of Janu-
ary 31st, 1893, and Certificate No. 47,189 of October
31st, 1905; which said words "Coca-Cola" this Court
finds to be and constitute a lawful, valid and subsist-
ing trade-mark, which is the sole and exclusive prop-
erty of the complainant.

Further ordered that defendant pay the costs herein
to be taxed by the Clerk under the direction of the
Court and that execution issue therefor.

— 435 —

THE COCA-COLA COMPANY

The parties hereto stipulate and agree that the fore-
going and final decree may be entered herein.

Candler, Thomson & Hirsch and James L. Hopkins,
Attorneys for Complainant.

Morgan & Morgan, Attorneys for Defendant.

436 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT

OF VIRGINIA, RICHMOND DIVISION

No. 25— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
B. F. YELTON, Defendant.

FINAL DECREE.

This cause in which the bill was taken for con-
fessed as to the said defendant by an order and de-
cree entered herein on the llth day of December,
1916, came on for trial hearing before the HONORABLE
EDMUND WADDILL, JR., Judge of the District Court of
the United States for the Eastern District of Virginia,
on the bill taken for confessed and exhibits filed
therewith. On consideration whereof the court is of
opinion and doth adjudge and decree as follows:

First: That the defendant and all of his associates,
salesmen, clerks and employes, and each and every
person claiming under him or by or through said de-
fendant, or in any way connected with his business,
be perpetually enjoined and restrained:

(a) From in any way or manner selling or offering
to sell or from delivering, in response to orders for
your complainant's product Coca-Cola, a spurious and
inferior beverage, the color whereof is in simulation
of your complainant's beverage as and for the carbo-
nated drink made from your complainant's Coca-Cola
syrup; or from using said spurious or inferior syrup
to make the drinks served to customers ordering the
product of your complainant.

— 437 —

THE COCA-COLA COMPANY

(b) From infringing upon the trade rights of your
complainant, and from the further commission of the
acts of substitution made by the defendant when Coca-
Cola is called for by customers, in fraud of the pur-
chasing public and in violation of the rights of your
complainant.

(c) From selling and delivering, in response to re-
quests or orders for Coca-Cola, any beverage other
than that made from the Coca-Cola syrup manu-
factured by your complainant.

(d) From using any name sufficiently similar to the
name Coca-Cola or any name applied to any drink as
to cause deceit.

(e) From marketing a product of the same iden-
tical or similar color which has for so long been used
by your complainant in marketing its product, for
the purpose of inducing customers or purchasers to
believe that the product sold or offered for sale is
Coca-Cola.

(f ) From selling or exposing for sale any beverage
other than your complainant's product Coca-Cola,
having the peculiar and distinctive color and appear-
ance of your complainant's product Coca-Cola, or any
such approximation thereof as may be likely to de-
ceive the public without such differentiation as will
effectually prevent the passing off of a spurious prod-
uct as and for the product of your complainant.

Second: It is further ordered and adjudged that
the complainant is entitled to have the sole and ex-
clusive right to the use of the trade-mark or trade
name "Coca-Cola" in connection with a soft drink or
beverage.

Third: It is further ordered that this cause be
referred to Ernest M. Long, he being appointed as
such for the special fitness and convenience of the
court, to take and hear proof and make report to the
next regular term of this court what damages have
been sustained by. the plaintiff the Coca-Cola Com-
pany by reason of the sale or sales by the defendant

— 438 —

v. B. F. YELTON

B. F. Yelton, his agents and employes, of any bever-
age not made by your complainant as and for Coca-
Cola when Coca-Cola is called for, or the sale of any
spurious product or imitation of complainant 's prod-
uct known as Coca-Cola, or by the use of any product
in any form sufficiently similar to the form of your
complainant's product as to cause deception to the
persons purchasing or calling for the same. The spe-
cial master will take proof on said order of reference
at such time and place as may suit the convenience
of himself and parties to the cause, and due notice
of all hearings will be given to counsel or to the par-
ties in interest, unless times and places thereof be
fixed by consent.

Fourth: It is further adjudged and ordered that
defendant do pay all costs of this suit to the date of
this decree.

This the 29th day of January, 1917.

EDWAKD WADDILL, JR.,
Judge.

Candler, Thomson & Hirsch, Atlanta, Ga. ; C. V .
Meredith and W. R. Meredith, Richmond, Va., for
Complainant.

— 430 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN

DISTRICT OF KENTUCKY

THE COCA-COLA COMPANY, Complainant,

v.

P. E. STUTZ, doing business as STUTZ CONFEC-
TIONERY STORE, Defendant,

DEOEEE.

The Bill of Complaint herein having been taken
pro confesso as to the defendant, P. E. Stutz, doing-
business as the Stutz Confectionery Store, and this
cause having been duly submitted to the Court, it is
considered, ordered ami drcrrcd:

A. That the defendant, P. E. Stutz, his agents,
servants and employees and each of them be and
they are hereby enjoined—

1. From infringing upon the trade rights of The
Coca-Cola Company in the manner in the Bill of Com-
plaint herein set forth, and from the further commis-
sion of the acts of substitution in the Bill of Com-
plaint more particularly described.

2. From selling and delivering in response to re-
quests or orders for Coca-Cola any beverage other
than that made .from the Coca-Cola syrup manufac-
tured, by the complainant, whether from syrup or
from a bottle of the finished product.

3. From using any name sufficiently similar to the
name Coca-Cola, or any name applied to any drink,
so as to cause deceit.

4. From marketing a product of same or identical
or similar color used by the complainant, without
such differentiation as will prevent the passing off

— 440 —

v. P. E. STUTZ, etc.

of a spurious product as or for Coca-Cola, the product
of the complainant.

5. From selling or exposing for sale, any beverage
other than the complainant's product Coca-Cola, hav-
ing the peculiar and distinctive color and appearance
of said product, or any approximation thereon, as
likely may deceive the public without such differen-
tiation as effectually will prevent the passing off of
a spurious product as and for the product of the com-
plainant.

B. That the Defendant and all of his associates,
salesmen, servants, agents, workmen, employees and
attorneys and each and every person claiming under
or by or through the defendant be enjoined and re-
strained as aforesaid and henceforth from the date
of the entry of this decree.

C. The defendant will pay the costs of this action.

D. This action is reserved for such further and
other orders and proceedings as hereafter may be
necessary to execute and enforce this decree.

WALTER EVANS, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga.,
Selligmcm & Selligman, Louisville, Ky.,
For Complainant.

— 441 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN

DISTRICT OF KENTUCKY

THE COCA-COLA COMPANY, Complainant,

v.

L. H. ARMSTRONG, Doing Business as STAGE
CAFE, Defendant.

DECREE.

Comes the complainant, The Coca-Cola Company by
Selligman & Selligman, its counsel, and L. H. Arm-
strong, doing business as Stag^ Cafe, in his own
proper person, and by agreement submit this action
in chief upon the verified allegations of the Bill of
Complaint, and the Court being sufficiently advised,
it is considered, ordered and decreed:

A. That the defendant, L. H. Armstrong, his agents,
servants and employees, and each of them be, and
they are hereby enjoined:

1. From infringing upon the trade rights of The
Coca-Cola Company in the manner in the Bill of
Complaint herein set forth, and from the further
commission of the acts of substitution in the Bill of
Complaint more particularly described.

2. From selling and delivering in response to re-
quests or orders for Coca-Cola, any beverage other
than that made from the Coca-Cola syrup manufac-
tured by the complainant, whether from syrup, or
from a bottle of the finished product.

3. From using any name sufficiently similar to the
name Coca-Cola, or any name applied to any drink,
so as to cause deceit.

4. From marketing a product of same or identical
or similar color used by the complainant, without

— 442 —

v. L. H. ARMSTRONG, etc.

such differentiation as will prevent the passing off
of a spurious product as or for Coca-Cola, the product
of the complainant.

5. From selling or exposing for sale, any beverage,
other than complainant's product Coca-Cola, having
the peculiar and distinctive color and appearance of
said product, or any approximation thereof, as likely
may deceive the public, without such differentiation
as effectually will prevent the passing off of a spuri-
ous product as and for the product of the com-
plainant.

B. That the defendant and all of his associates,
salesmen, servants, agents, workmen, employees and
attorneys and each and every person claiming un-
der or by or through the defendant be enjoined and
restrained as aforesaid and henceforth from the date
of the entry of this decree.

C. The complainant waives an accounting of profits.

D. The defendant will pay the costs of this action.

E. This action is reserved for such further and
other orders and proceedings as hereafter may be
necessary to execute and enforce this decree.

(Sd) WALTER EVANS, Judge.
Enter January 15, 1916.

Seen and approved:
THE COCA-COLA COMPANY,
By Candler, Thomson & Hirsch, and
Selligman & SelligmaM,

Attorneys.

L. H. Armstrong, who hereunto signs his name in
his own proper person and indicates his approval and
ratification of the above and foregoing decree this
14th day of January, 1916.

(Sd) L. H. ARMSTRONG.
Witness

LOUISA C. BROWN.

— 443 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF VIRGINIA

IN EQUITY

COCA-COLA COMPANY, Complainant,

v.
EGISTO EGIZIANI, Defendant.

FINAL DECREE.

This day came complainant by counsel and came
also the defendant by counsel, and on motion of the
defendant, by counsel, leave is given him to withdraw
his answer hitherto filed in this cause, and there-
upon it is ordered that the bill of complaint be taken
for confessed.

And this cause by consent of the defendant by
counsel evidenced by his endorsement upon the back
of this decree came on for final hearing before the
HONORABLE EDMUND WADDILL, JR., Judge of the Dis-
trict Court of the United States for the Eastern Dis-
trict of Virginia, on the bill of complaint taken for
confessed and affidavits of certain expert witnesses
for complainant hitherto filed in this cause, and was
argued by counsel. And thereupon and upon con-
sideration thereof, the Court doth adjudge and decree
as follows:

I.

That the defendant, Egisto Egiziani, and all of
his associates, salesmen, servants, clerks, agents and
employes and each and every person claiming under
him or by or through said defendant, or in any way
connected with his business, be perpetually enjoined
and restrained:

-444-

•

v. EGISTO EGIZIANI

(a) From in any way or manner selling or offering
for sale a product as and for Coca-Cola which is not
the product of your orator in any way, so as to pass
the same off as and for the product of your orator.

(b) From selling or offering for sale a soft drink
in the same identical color which has for so long
been used by your orator in marketing its product
for the purpose of inducing customers or purchasers
to believe that the product sold or offered for sale
is Coca-Cola.

(c) From selling or offering for sale any bever-
age not made by your orator as and for Coca-Cola
when Coca-Cola is called for; or from representing
any product not made by your orator to be Coca-
Cola ; or from any act in the premises in any manner
or 'form calculated to deceive or defraud persons
offering to purchase Coca-Cola.

II.

And it appearing to the Court that the complain-
ant does not desire to take any proof as to the dam-
ages which it has sustained by reason of the sale or
sales made by the defendant, or his agents and em-
ployes, as alleged in the complainant's bill, it is fur-
ther adjudged, ordered and decreed that the com-
plainant recover of the defendant all its costs in this
suit had and expended.

And nothing further remaining to be done herein,
it is further ordered that this suit be stricken from
the docket and placed among the ended causes.

EDMUND WADDILL, JK.,

U. S. District Judge.

Richmond, Va., December 2nd, 1914.

Caftdler, Thomson & Hirsch, Atlanta, Ga. ; Mere-
dith & Cocke, Richmond, Va. ; Wyndham Meredith.
Richmond, Va., for Complainant.

— 445 —

THE COCA-COLA COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF VIRGINIA

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

C. DABHANIAN, doing business under the name

mid style of THE DAEON COMPANY,

Defendant.

FINAL DECREE.

This cause came on for final hearing before the
Hon. Edmund Waddill, Jr., Judge of the District
Court of the United States for the Eastern District
of Virginia, on the pleadings and proofs in the cause,
including the stipulation of counsel this day filed
that the affidavits hitherto filed in this cause as well
as the additional affidavits of S. C. Dobbs and Charles
H. Candler and A. G. Smith and of W. G. Kitterer,
this day filed on behalf of the complainant, as well
as the affidavit of the defendant, C. Darhanian, like-
wise this day filed on behalf of the defendant, as
also the answer of the defendant, shall be consid-
ered and treated by the Court as if each were the
deposition of the affiant duly taken, from all of which
the Court is of opinion and adjudged and decrees
as follows:

I.

That the defendant and all of his associates, sales-
men, servants, clerks, agents and employes, and each
and every person claiming under him or by or through
said defendant or in any way connected with his
business, be perpetually enjoined and restrained:

— 446 —

v. C. DARHANIAN, etc.

(a) From in any way or manner selling or offering
for sale a product as and for Coca-Cola, which is not
the product of your orator in any way so as to pass
the same off as and for the product of your orator.

(b) From selling or offering for sale a soft drink
in the same identical color which has for so long
been used by your orator in marketing its product
for the purpose of inducing customers or purchasers
to believe that the product sold or offered for sale is
Coca-Cola,

(c) From selling or offering for sale any beverage
not made by your orator as and for Coca-Cola when
Coca-Cola is called for; or from representing any
product not made by your orator to be Coca-Cola;
or from any act in the premises in any manner or
form calculated to deceive or defraud persons offer-
ing to purchase Coca-Cola.

II.

It is further ordered and adjudged that the com-
plainant is entitled to have the sole and exclusive
right to the use of the trade-mark or trade-name
" Coca-Cola " in connection with a soft drink or
beverage.

III.

That said cause is hereby referred to E. M. Long,
Esq., he being appointed as such for special fitness
and convenience to the Court to take and hear proof
and make report to the next regular term of this
Court upon the following points:

(a) What damage has been sustained by the plain-
tiff, The Coca-Cola Company, by reason of the sale
by the defendant, C. Darhanian, his agents and em-
ployes, of any beverage not made by your complain-
ant as and for Coca-Cola when Coca-Cola is called
for or the sale of any spurious product and imita-
tion, or by the use of any product in any form suffi-
ciently similar to the form of your orator's product
as to cause deception to the person purchasing or

— 447 —

THE COCA-COLA COMPANY

calling for the same. The Special Master will take
proof on said order of reference at such time and
place as may suit the convenience of himself and
parties to the cause and due notice of all hearing
will be given to counsel for the parties in interest
unless times and places thereof be fixed by consent.

Defendant will pay all costs of the cause to the
date of this decree.

This 14th day of March, 1914.

EDMUND WADDILL, JR.,
U. S. Dist.

Candler, Thomson & Hirsch, Atlanta, Gra.,
Meredith & Cocke, and Wij)i(Umm Meredith, Rich-
mond, Va.,
For Complainant.

I

448 —

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF VIRGINIA

IN EQUITY

COCA-COLA COMPANY, Complainant,

v.
D. D. MURPHY, Defendant.

FINAL DECREE.

This day came complainant by counsel and came
also the defendant by counsel, and on motion of the
defendant by counsel leave is given him to withdraw
his answer hitherto filed in this cause, and thereupon
it is ordered that the bill of complaint be taken for
confessed.

And this cause by consent of the defendant by coun-
sel evidenced by his endorsement upon the back of
this decree came on for final hearing before the HON-
ORABLE EDMUND WADDILL, JR., Judge of the District
Court of the United States for the Eastern District of
Virginia on the bill of complaint taken for confessed,
and was argued by counsel. And thereupon and upon
consideration thereof, the Court doth adjudge and
decree as follows:

1.

That the defendant, D. D. Murphy, and all of his
associates, salesmen, servants, clerks, agents and em-
ployes, and each and every person claiming under him
or by or through said defendant, or in any way con-
nected with his business, be perpetually enjoined and
restrained :

— 449 —

THE COCA-COLA COMPANY

(a) From in any manner selling or offering for sale
a product as and for Coca-Cola which is not the
product of your orator in any way, so as to pass the
same off as and for the product of your orator.

(b) From selling or offering for sale a soft drink
in the same identical color which has for so long been
used by your orator in marketing its product for the
purpose of inducing customers or purchasers to be-
lieve that the product sold or offered for sale is Coca-
Cola.

(c) From selling or offering for sale any beverage
not made by your orator as and for Coca-Cola when
Coca-Cola is called for; or from representing any
product not made by your orator to be Coca-Cola; or
from any act in the premises in any manner or form
calculated to deceive or defraud persons offering to
purchase Coca-Cola. ,

2.

And it appearing to the Court that the complain-
ant does not desire to take any proof as to the dam-
ages which it has sustained by reason of the sale or
sales made by the defendant, or his agents and em-
ployes, as alleged in the complainant's bill, it is fur-
ther adjudged, ordered and decreed that the com-
plainant recover of the defendant all its costs in this
suit had and expended.

And nothing further remaining to be done herein,
it is further ordered that this suit be stricken from
the docket and placed among the ended causes.

EDMUND WADDILL, JR.,

U. S. Dist. Judge.
Richmond, Va., June 28, 1915.
A true copy — Attest:

E. E. POWERS,
Deputy Clerk.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Mere-
dith & Coclce, Bichmond, Va., for Complainant.

— 450 —

APPLICATION FOR INJUNCTION, ETC.

IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
J. ALTON KOLB, Defendant.

DECREE.

The complainant, The Coca-Cola Company, and tho
defendant, J. Alton Kolb, having stipulated that the
verified allegations of the bill of complaint may bo
taken as true, and this action having been submitted
in chief, and the Court being sufficiently advised, it is
considered, ordered and decreed —

(a) That the defendant, J. Alton Kolb, his agents,
servants and employees, and each of them, be, and
they are hereby enjoined—

1. From infringing upon the trade rights of The
Coca-Cola Company, as in the complaint described,
and from the further commission of the acts of sub-
stitution as therein described.

2. From selling and delivering, in response to re-
quests or orders for Coca-Cola, any beverage other
than that made from the Coca-Cola syrup manufac-
tured by the complainant.

3. From using any name sufficiently similar to the
name of Coca-Cola, or any name applied to any drink,
as to cause deceit.

— 451 —

THE COCA-COLA COMPANY

4. From selling or exposing for sale any beverage
simulating the product Coca-Cola without such dif-
ferentiation as will effectually prevent the passing off
of a spurious product as and for Coca-Cola, the prod-
uct of the complainant.

(b) No accounting of profits or damages in the
premises is required of the defendant.

(c) The defendant will pay the costs of this action.

(d) This action is reserved for such further and
other orders and proceedings as hereafter may be nec-
essary to uphold and enforce this decree.

A copy — Attest :

A. G. RONALD, Clerk,.

By M. E. HOLLIBAN, D. C.

Candler, Thomson & Hirsch, Atlanta, Georgia;
Selligman & Selligman, Louisville, Ky. ; for Com-
plainant.

— 452 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT

OF VIRGINIA

IN EQUITY

THE COCA-COLA COMPANY
v.

LENA WILLS, doing business as WILLS
PHARMACY

Presiding: HONORABLE HENRY C. MCDOWELL,

Judge.

This Cause came on to be heard upon the 29th day
of October, 1917, on motion of the plaintiffs for per-
manent injunction, in accordance with the prayer of
the bill, and by consent, of parties, in open Court, it
appearing that they have agreed upon a settlement of
the matters involved in this cause, in accordance
with this order, the Court doth order and decree that
the defendant, Lena Wills, her servants, agents and
employes be; and they are hereby perpetually en-
joined:

1st : From infringing upon the trade rights of The
Coca-Cola Company, and from substituting other
drinks as and for Coca-Cola.

2nd: From selling and delivering, in response to
requests or orders for Coca-Cola any beverage other
than that made from the Coca-Cola syrup, manufac-
tured by the plaintiff.

3rd: From using any name sufficiently similar to
the name of Coca-Cola, applied to any drink, as to
cause deceit.

— 453 —

THE COCA-COLA COMPANY

4th: From marketing a product of the same iden-
tical or similar color, so long used by the plaintiff in
its products.

5th: From selling or exposing for sale any bev-
erage other than the plaintiff's product, Coca-Cola,
having the peculiar and distinctive color and appear-
ance of plaintiff's product, or any such approxima-
tion thereof as may be likely to deceive the public,
without such differentiation that will effectually pre-
vent the passing off of a spurious product as and
for the product of the plaintiff.

6th: That plaintiff be awarded no damages for
any previous acts complained of in the bill.

7th: That each party shall pay its own costs ac-
crued in this cause.

The object of this suit having been accomplished
it is ordered that the same Ije stricken from the
docket.

We hereby consent that the above order may be
entered :

Candler, Tliowxou & HirxcJi, Caskie & Caskie,
Attorneys for The Coca-Cola Co.

Geo. A. Revercomb, Attorney for Lena Wills.

A Copy: Teste:
Louis H. PRICE,

Clerk.

— 4.34 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE JACKSON DIVISION
OF THE SOUTHERN DISTRICT
OF MISSISSIPPI

THE COCA-COLA COMPANY

v.
J. R. JENKINS.

DECREE.

Be It Remembered, That this day came on to be
heard the above entitled cause when came both par-
ties by their attorneys and a decree by consent is
entered herein as follows:

1. It is ordered, adjudged and decreed that this
court has jurisdiction.

2. It is further ordered, adjudged and decreed,
without deciding whether said Jenkins has or has
not done those things alleged in the bill to have
been done, and these questions are expressly per-
mitted from decision, and this decree shall be with-
out prejudice to either party with reference to them

-that he, the said Jenkins, his agents, servants, em-
ployes, each and all of them be and they are hereby
as to the future, restrained, enjoined and prohibited:

(a) From infringing upon the rights of The Coca-
Cola Company.

(b) From substituting for Coca-Cola, when and as
called for by any customer, any other or different
beverage or drink and from not supplying said Coca-
Cola produced by complainant when and as called for.

(c) From selling and delivering in response to such
requests or orders for Coca-Cola any beverage other
than that made from the Coca-Cola syrup manu-
factured by complainant free and unmixed with any

— 455 —

THE COCA-COLA COMPANY

adulterant or other substance used or attempted to
be used in substitution of said Coca-Cola syrup and
which could be no substitute by reason of its color
and other quality.

3. From using any name sufficiently similar to the
name Coca-Cola, or any name applied to any drink as
to cause deceit and deception with reference to the
drink or beverage so called for, and from marketing
any product of the same or identical color so long
used by complainant in its product, and thereby and
from selling or exposing for sale any beverage as
Coca-Cola other than Coca-Cola produced by com-
plainant the peculiar and distinctive color and ap-
pearance of said product or an approximation thereof,
which would, or would be likely to deceive the pub-
lic without differentiation or distinguishing marks
and characteristics as will effectually prevent the
passing off wrongfully of an inferior product as and
for the product of complainant.

4. That the claim for damage upon the part of
complainant be dismissed.

5. That the claim for damages in the cross bill be
dismissed, and a perpetual injunction be issued in
accordance with the foregoing decree.

6. That The Coca-Cola Company, complainant, pay
all costs of this suit.

Ordered, adjudged and decreed this the 8th day
of April, 1918.

H. C. NILES,
Judge.

Candler, Thomson & Hirsch; Green & Green, for
Plaintiff.
0. K.

A. M. Perry, Atty. for Defendant.

— 456 —

v. J. E. JENKINS

UNITED STATES OF AMERICA,
SOUTHERN DISTRICT OF MISSISSIPPI.

I, Jack Thompson, Clerk of the District Court of
the United States for the Southern District of Mis-
sissippi, do hereby certify that the foregoing Re-
straining Order and Final Decree are true and correct
copies of the original orders as the same appear of
record in my office at Jackson, Miss.

Witness my hand and seal this August 17, 1922.

JACK THOMPSON, Clerk.

— 457 —

THE COCA-COLA COMPANY

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF OHIO,

WESTERN DIVISION

No. 10— IN EQUITY

THE COCA-COLA COMPANY, a Corporation,

Complainant,

v.

MARY F. GILDEA, JOSEPH W. GILDEA, and
ELLA RUDOLPH, Defendants.

I

FINAL DECREE.

This cause came on to be further heard at this
term and it appearing that a decree pro confesso was
taken by complainant herein on October 13, 1913, and
that no proceedings have been taken by the defend-
ants to set aside said decree, now upon motion of
Murray Seasongood, solicitor for complainant, and
upon consideration of the foregoing it is ordered, ad-
judged and decreed as follows, viz.:

That the defendants, Mary F. Gildea, Joseph F.
Gildea and Ella Rudolph, and each of them, their
agents, employes and associates, and each and every
person connected with their business be and they are
hereby perpetually enjoined, prohibited and com-
manded to refrain:

From in any way or manner selling or dispensing
the drink and beverage known as Gay-Ola in place of
and for the drink known as Coca-Cola;

From selling and dispensing Gay-Ola when Coca-
Cola is asked or called for;

From in any way or manner selling or dispensing

— 458 —

v. MARY F. GILDEA, et al.

any other syrup, drink or beverage of the same or
substantially the same color, consistency, and general
appearance as Coca-Cola, in place of or for Coca-Cola,
or when said Coca-Cola is asked or called for;

From in any way or manner selling or dispensing
said Cola drink heretofore sold by the defendants, or
any other drink or beverage similar thereto, in bot-
tles, the same or substantially similar to the bottle
filed in Court by the complainant as Exhibit No. 2,
with the affidavit of H. H. Glaze, and A. J. Connor;

From dispensing any Cola drink of the same or sub-
stantially similar color to Coca-Cola, except when the
same is sold in bottles, receptacles or packages
marked or labelled prominently with the name Gay-
Ola, and designed and intended to be sold and de-
livered to the ultimate consumer in said original
bottle, receptacle or package with said mark or label
still remaining thereon.

It is further ordered that the complainant recover
its costs of the defendants.

Entered by JUDGE HOLLISTEK, April 4, 1914.

Candler, Thomson & Hirsch, Atlanta, Ga.; Paxton,
Warrington & Seasongood, Cincinnati, Ohio, for Com-
plainant.

— 459 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

No. 30905

THE COCA-COLA COMPANY, a Corporation,

v.
GEORGE KOTSONAS.

FINAL DECREE.

This cause coming on upon motion of Complainant
to have a final decree entered upon the Bill of Com-
plaint filed herein, the Court does find as follows:

That it has jurisdiction of the subject matter of
said cause of action and of the parties hereto:

That heretofore, to wit, on the 23rd day of August,
A. D. 1912, there was duly issued from this Court a
rule requiring George Kotsonas, the said defendant,
to appear in answer to said bill of complaint on the
October, 1912, rule day of this Court, being the first
Monday in October, 1912.

That said rule was duly and legally served upon
said George Kotsonas in person on the 3rd day of
September, 1912, twenty (20) days before the said
October, 1912, rule day.

That said defendant did not enter his appearance
on or before said rule day, and has still failed to enter
his appearance in said Court or to plead, answer or
demur to said bill of complaint;

That on motion of solicitors for said complainant
duly made in this Court on the Twenty-third day of
October, 1912, the said defendant was declared in

— 460 —

v. GEOBGE KOTSONAS

default, and leave was granted to said complainant
to take said bill pro confesso;

That the defendant, George Kotsonas, is a vendor
of soft drinks, wholesale and retail, in the City of
Chicago, Illinois, and that since on or about the
month of April, 1912, in said City of Chicago, the said
defendant, totally without said complainant's consent,
fraudulently and wilfully, with intent to deceive the
public and to divert trade and profits from and in-
jure said complainant, and to take advantage of the
business established and built up by said complainant
and said predecessors, under the name of Coca-Cola,
offered for sale and sold, and continues to offer for
sale and sell and threatens to continue to offer for
sale, a product which is manufactured in such a way
as to be most similar to the product of said com-
plainant, in respect to its general appearance, color
and consistency, but which is not the product manu-
factured by said complainant;

That said sales of said product of the defendant
have been made when purchasers called for the
product of said complainant, and that by substituting
his said product for the product of said complainant
and by using the name Coca-Cola, said defendant has
diverted and now diverts and fraudulently intends
to continue to divert, profits which rightfully should
come to said complainant and intends to induce pur-
chasers to buy his product as and for the product
made by said complainant, and in so doing, to injure
and destroy the trade-mark of said complainant;

That it is not necessary in making a drink of the
kind and character made by said complainant and
which shall be palatable and have an agreeable taste,
that it be made to have the color and similarity of
said complainant's product;

That said defendant's product is artificially colored
with caramel which is used as a decorative feature
to the product of the defendant and is in no wise an
essential or necessary feature, and there are many

— 461 —

THE COCA-COLA COMPANY

other colorings that could be used, and that said
product of the said defendant could have been made
having other colors distinct from the color of the
product of said complainant and which would make
it possible for one who has become familiar with the
product of said complainant to differentiate and dis-
tinguish the product of the defendant from the prod-
uct of said complainant;

That the caramel coloring in said complainant's
product has become associated with long use in the
minds of the public in said complainant's product.

It is therefore Ordered, Adjudged and Decreed by
the Court, that the defendant, George Kotsonas, and
all his associates, salesmen, servants, clerks, agents,
workmen, employes and every other person claiming
or holding under or through the said defendant, or in
any way connected with his business, be perpetually
enjoined and restrained from in any way or manner
making or selling his product in such a way as to
pass the same as and for the product of said com-
plainant and from using in any form whatsoever, the
name Coca-Cola, as applied to any drink except that
of said complainant, or from serving any product
except the product of said complainant, when Coca-
Cola is asked for;

That said complainant be and is hereby declared
and adjudged to have a sole and exclusive right to
the use of the mark or name Coca-Cola, in connection
with a drink or beverage.

It is further Ordered, Adjudged and Decreed, That
the matter be referred to Charles B. Morrison, Esq.,
Master in Chancery of this Court, for the purpose of
hearing evidence as to the damages suffered by said
complainant on account of the unlawful acts of said
defendant, as set forth in said Bill of Complaint, and
to report back his findings of fact and law thereon.

It is further Ordered that a writ of Permanent In-
junction issue to the Marshal of this Court, to be by
him served upon the defendant, George Kotsonas,

— 462 —

v. GEORGE KOTSONAS

returnable according to law, enjoining and restraining
the said defendant and his respective attorneys, serv-
ants, agents, associates, workmen, employees and
representatives, all claiming or holding under or
through him, as in this Final Decree set forth.
Enter: KENESAW M. LANDIS, Judge.

Candler, Thomson & Hirsch, Atlanta, Ga.; Ringer,
Wilhartz & Louer, Chicago, 111., for Complainant.

November 26, 1912.

403 —

THE COCA-COLA COMPANY

No. 133— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

F. E. WILLIAMS, Jr., and E. J. WILLIAMS,

doing business as OWL DRUG STORE,

Defendants.

FINAL DECREE.

This cause having been, by agreement of the parties
hereto and their counsel of record, submitted to
be heard in Vacation of the Court, and all the parties
hereto appearing before the undersigned Judge of
said Court by their attorneys of record and an-
nouncing that said cause had been settled ancf ad-
judged out of court by written agreement executed
by the parties hereto and on file in this cause and
which is in the following words, to wit:

"This agreement made and entered into this
the 23rd day of August, 1916, by and between The
Coca-Cola Company, a corporation of the State
of Georgia, County of Fulton, City of Atlanta, as
party of the first part, and F. E. Williams, Jr.,
and E. J. Williams, doing business as Owl Drug
Store, of the City of Hattiesburg, County of
Forrest, State of Mississippi, as parties of the
second part,
Witnesseth :

"Whereas, the party of the first part on the
13th day of July. 1914, filed its bill of complaint

— 464 —

v. F. E. WILLIAMS, JR., etc.

in the District Court of the United States for the
Southern District of Mississippi, Southern Divis-
ion, against the parties of the second part, alleg-
ing infringement by parties of the second part of
the trade-mark of the party of the first part and
unfair competition, the said bill of complaint
being referred to as a part of this agreement
and as setting out the grounds of complaint made
by the party of the first part against party of
the second part: and whereas, it is the desire of
the parties of the said suit to settle the same;

"Now, therefore, in consideration of the re-
linquishment of any claim which party of the
first part may have against parties of the second
part for damages on account of the matters and
things alleged in said bill of complaint, the
parties of the second part agree that they, their
associates, servants, clerks, agents, workmen, em-
ployes and attorneys and each and every person
under or through them or in any way connected
with their business, will not in any way or man-
ner handle, sell or dispense any product for
and as Coca-Cola that is not the product of the
party of the first part, and will not sell or ex-
pose for sale any beverage other than the prod-
uct of the party of the first part, Coca-Cola,
having the same peculiar and distinctive appear-
ance and color of said product of the party of
the first part, or any such approximation thereof
as may be likely to deceive the public, without
such differentiation as will effectually prevent
the passing off of a spurious product as and for
the said product of the party of the first part,
and will not sell any product that is not Coca-
Cola when Coca-Cola is called for either by its
proper name, Coca-Cola, or colorable imitation
thereof or nickname therefor such as 'Dope'
and 'Koke' or any other name or designation
commonly applied to the said product of party of

— 465 —

THE COCA-COLA COMPANY

the first part and intending to designate the same,
and will not use said name Coca-Cola as applied
to any product except the product of the Coca-
Cola Company.

"It is further agreed that a decree may be en-
tered, in Vacation of the Court, in the said
suit setting out this agreement and confirming
the same and taxing the costs of suit against
party of the first part.

"In Witness Whereof the said parties have
hereunto set their hands on the day and date first
above written.

THE COCA-COLA COMPANY,
By Caudler, Thomson & Hirsch,
and Stevens & Cook, Its Attor-
neys, Party of the First Part.
I

OWL DRUG STORE,
By F. E. Williams, E. J. Wil-
liams, Parties of Second Part."

And the parties, by their said attorneys, before the
undersigned Judge agreeing and consenting thereto,
it is ordered, adjudged and decreed that the settle-
ment and adjustment of said cause so set out in said
agreement be and the same is hereby confirmed and
adopted as the decree of this court finally determining
the said cause; that the defendants, F. E. Williams,
Jr., and E. J. Williams, doing business as Owl Drug
Store, their associates, servants, clerks, agents, work-
men, employes and attorneys and each and every
person under or through them or in any way con-
nected with their business, be and they are hereby per-
petually enjoined from the doing of the things or
any of them which the said defendants stipulate in
said agreement to refrain from doing; and that the
complainants in said cause pay the costs of this
suit. The Clerk is directed to enter this decree on
the Minutes of this Court.

— 406 —

v. F. E. WILLIAMS, JR., etc.

Ordered, Adjudged and Decreed on this the 25th
day of August, A. D. 1916, at Kosciusko, Mississippi.

(Signed) H. C. NILES,

Judge.

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN

DIVISION.
In Equity.

I, JACK THOMPSON, Clerk of the District Court of
the United States for the Southern District of
Mississippi, hereby certify that the foregoing attached
three typewritten pages are full, true and correct
copies of the original on file and of record in my
office at Biloxi, in the southern division of said
district.

Given under my hand and seal of said district
Court, at Biloxi, in said District, on the 22nd day of
August, A. D. 1922.

(Seal) JACK THOMPSON, Clerk.

By GEO. P. MONEY, D. C.

— 407

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT

OF WEST VIRGINIA

No. 797— IN EQUITY

THE COCA-COLA COMPANY, a Corporation,
Complainant,

v.

OPERA PHARMACY, a Corporation,
Defendants.

This cause came on to be again heard at this term
and was argued by counsel, and, by agreement of
counsel, was submitted at this tiyie for final decision.

And the Court being of opinion that the complain-
ant was entitled to the temporary injunction hereto-
fore awarded and that no cause exists for the dissolu-
tion of the same, and that the complainant is entitled
to have said temporary injunction perpetuated, upon
consideration of all of which it was adjudged, ordered
and decreed that the defendant, Opera Pharmacy, its
associates, salesmen, servants, clerks, agents, work-
men and employees, and each and every person claim-
ing under, by or through said defendant, be, and they
are hereby perpetually inhibited, restrained and en-
joined as follows :

First: From infringing upon the trade rights of
The Coca-Cola Company as set forth in its bill of
complaint, and from any and all further commission of
acts of substitution as therein described;

Second: From selling and delivering, in response
to requests or orders for Coca-Cola, any beverage,
other than that made from the Coca-Cola syrup manu-
factured by the complainant;

Third: From using any name sufficiently similar to
the name Coca-Cola, or any name, applying to any

— 468 —

v. OPERA PHARMACY

drink, as to cause deceit in respect to the complain-
ant's product Coca-Cola;

Fourth-. From marketing any product of the same
identical or similar color used by said complainant
in its said Coca-Cola syrup product;

Fifth: From selling, or exposing for sale, any
beverage other than the complainant's product Coca-
Cola, having the peculiar and distinctive color and
appearance of said product, or any such approxima-
tion thereof as may be likely to deceive the public
without such differentiation as will effectually pre-
vent the passing off or substitution of any such
spurious product as and for the product of the com-
plainant known as Coca-Cola,

And by consent of parties, and in lieu of an ac-
counting for damages for sales by the defendant of
substituted articles in the place and stead of the
plaintiff's product Coca-Cola, it is agreed that prior
to the institution of this suit the complainant has
suffered damages by reason of the unlawful substi-
tutions by the defendant for the complainant's manu-
factured product Coca-Cola in the sum of thirty-seven
dollars and fifty cents ($37.50), and that the com-
plainant is entitled to recover said sum from the de-
fendant as damages in this suit.

It is therefore adjudged, ordered and decreed that
the complainant, The Coca-Cola Company, a cor-
poration, do recover of and from the defendant, Opera
Pharmacy, a corporation, the sum of thirty-
seven dollars and fifty cents ($37.50), together with
its costs about the prosecution of its suit in this Court
incurred, to be taxed by the Clerk of this Court, and
leave is given said complainant to sue out execution
therefor from the Clerk's office. And it is further
ordered that a service of a copy of this order upon
the defendant, Opera Pharmacy, or its attorney of
record in this cause, shall be due and sufficient notice
of this injunction, and this cause is ordered dropped
and dismissed from the docket, but with leave to the

— 4G9 —

THE COCA-COLA COMPANY

complainant upon motion to have the same reinstated
at any time to invoke the process of this Court for
the enforcement of the injunction awarded or the
punishment of any violation thereof, or for further
and appropriate relief which may be necessary to
fully protect the rights of the complainant as ad-
judicated herein.

UNITED STATES OF AMERICA, )

• ss
SOUTHERN DISTRICT OF WEST VIRGINIA. (

I, Ira H. Mottesheard, Clerk of the District Court
of the United States for the Southern District of
West Virginia, do certify that the foregoing is a true
copy from the record of an order entered on the 22nd
day of October, 1915, and 30th day of November, 1915,
in the cause of The Coca-Cola Company, a corpora-
tion, v. Opera Pharmacy, a corporation, and now of
record and on file in my office.

In- Testimony Whereof I hereto set my hand and
the seal of said Court, at Charleston, in said District,
this 25th day of August, A. D. 1922, and in the 147th
year of the Independence of the United States of
America.

IRA H. MOTTESHEARD, Clerk,
( Seal) D. C. U. S. S. D. W. Va.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Mollo-
han, McClintie & Mathews, Charleston, W. Va., for
Complainant.

— 470 —

No. 2924— IN EQUITY

THE COCA-COLA COMPANY, a Corporation

under the laws of the State of Georgia,

Complainant,

v.

NEWPORT MINERAL WATER COMPANY, a Cor-
poration organized and existing under the laws
of the State of Kentucky, Defendant.

FINAL DECREE.

This cause came on to be further heard at this
term and it appearing that a decree pro confesso was
taken by complainant herein on August 22, 1914, and
that no proceedings have been taken by the defend-
ant to set aside said decree, now upon motion of
Murray Seasongood, solicitor for complainant, and
upon consideration of the foregoing, it is ordered,
adjudged and decreed as follows, viz.:

That the defendant, Newport Mineral Water Com-
pany, a corporation organized and existing under
the laws of the State of Kentucky, its officers, agents,
employes, privies and all persons whatsoever be and
they are hereby perpetually enjoined, prohibited and
commanded to refrain from bottling or selling Gay-
Ola or other beverage of the same or substantially

— 471 —

THE COCA-COLA COMPANY

the same color as Coca-Cola, in any bottle, or with
any crown, substantially similar in size, shape, color
or lettering or general appearance, to the bottle or
crown in which complainant bottles and sells its
product; from bottling or selling Gay-Ola or other
beverage of substantially the same color as Coca-
Cola, except in a long-necked, clear-glass bottle, hav-
ing two complete annular ribs and two partially com-
plete annular ribs blown in the body of the bottle
and having the word "Gay-Ola" in large capital
letters blown in the shoulder thereof and the words
"The Improved Cola" in the body thereof.

Complainant is given leave to apply at any time for
an accounting as prayed for in the bill of complaint.

It is further ordrrcfl that complainant recover its
costs of the defendant.

A. M. J. COCHRAN,

Judge.
THE UNITED STATES OF AMERICA,

EASTERN DISTRICT OF KENTUCKY. ' *

I, J. W. Menzies, Clerk of the United States Dis-
trict Court for the Eastern District of Kentucky,
at Covington, do hereby certify that the foregoing
is a true and correct copy of the Final Decree in the
matter set out in the caption hereto, as the same
appears from the records and files of this office.

Witness my hand as Clerk and the seal of said
Court, at Covington, Ky., this 25th day of September,
1922, and of the Independence of the United States
of America the 147th year.

J. W. MENZIES, Clerk,
(Seal) By J. A. BODKIN, D. C.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Paxton,
Warrington & Seasongood, Cincinnati, Ohio, for Com-
plainant.

— 472 —

No. 12— IN EQUITY

THE COCA-COLA COMPANY, a Corporation,

Complainant,

v.

THE HOTEL RAND COMPANY, a Corporation,
and GEORGE EGNER, Defendants.

FINAL DECREE.

This cause came on to be heard further at this
term, and it appearing that a decree pro confesso was
taken by complainant herein on October 13, 1913,
and that no proceedings have been taken by defend-
ants to set aside said decree and that the complain-
ant desires to and does dismiss its bill against the
defendant, The Hotel Rand Company, now, upon mo-
tion of Murray Seasongood, solicitor for complainant,
and upon consideration of the foregoing, it is or-
dered, adjudged and decreed as follows, viz. :

That the defendant, George Egner, his agents, em-
ployes, associates and each and every person con-
nected with his business be and they are hereby per-
petually enjoined, prohibited and commanded to re-
frain :

From in any way or manner selling or dispensing
the drink and beverage known as Gay-Ola in place
of and for the drink known as Coca-Cola;

From selling or dispensing Gay-Ola when Coca-
Cola is asked or called for;

— 473 —

THE COCA-COLA COMPANY

From in any way or manner selling or dispensing
any other syrup, drink or beverage of the same or
substantially the same color, consistency and gen-
eral appearance as Coca-Cola, in place of or for Coca-
Cola, or when said Coca-Cola is asked or called for;

From in any way or manner selling or dispensing
said Gay-Ola in glasses or similar receptacles, so long
as said syrup, drink or beverage Gay-Ola shall have
its present color, consistency and general appearance,
or shall have the same or substantially the same
color, consistency and general appearance of Coca-
Cola;

From disposing of Gay-Ola of the same or substan-
tially similar color to Coca-Cola, except when the
same is sold in bottles, receptacles or packages marked
or labeled prominently with the name Gay-Ola, and
designed and intended to be sqld and delivered to
the ultimate consumer in said original bottle, recep-
tacle or package with said mark or label still re-
maining thereon.

It is further ordered that the complainant recover
its costs of the defendant, George Egner.

Entered by JUDGE HOLLISTEK, April 4, 1914.

Gaudier, Thomson & Hirsch, Atlanta, Ga. ; Paxton,
Warrington & Seasotigood, Cincinnati, Ohio, for Com-
plainant.

— 474 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN

DISTRICT OF KENTUCKY

THE COCA-COLA COMPANY, Complainant,

v.

JOHN G. EPPING, JOHN W. BLACK, JOHN G.
EPPING BOTTLING WORKS, Defendants.

DECREE.

Comes the complainant, The Coca-Cola Company,
and the defendants, John G. Epping, John G. Epping
Bottling Works and John W. Black, and by agree-
ment, this action is submitted in chief on the verified
allegations of the complainant, and the Court being
sufficiently advised, it is considered, ordered and
decreed:

That the defendants, John G. Epping, John G.
Epping Bottling Works and John W. Black, their
agents, servants and employes, and each of them, be
and they are hereby enjoined:

1. From marketing, selling or substituting as and
for Coca-Cola any product that is not the Coca-Cola
product manufactured by the complainant company.

2. From selling or exposing for sale any beverage
other than the product Coca-Cola manufactured by
the complainant and having the peculiar and dis-
tinctive color and appearance of its product or any
such approximation thereof as likely may deceive the
public, without such differentiation in the name and
labeling the containers thereof as will effectually pre-
vent the passing off of a spurious product as and
for the product of the complainant.

3. From selling out their own product in barrels
or other containers upon which the name of the

— 475 —

THE COCA-COLA COMPANY

Coca-Cola Company in any wise appears or the name
of any other products of the Coca-Cola Company ap-
pears without first removing any and all such dis-
tinguishing marks from the barrels or other con-
tainers.

4. That the plaintiff, in lieu of an accounting,
recover of the defendants, John G. Epping, John G.
Epping Bottling Works and John W. Black, the sum
of One Hundred ($100) Dollars, and the costs of this
proceeding.

5. This action is reserved for such further and
other orders and proceedings as may be necessary
to uphold and enforce this decree.

Candler, Thomson <£ Hirsch, Atlanta, Georgia;
Selligman & Selligman, Louisville, Kentucky, for
Complainant. I

— 476 —

No. 4916— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
LA SALLE CANDY SHOP, Incorporated, Defendant.

FINAL DECREE.

Now this day the parties hereto consenting to the
entry of this final decree, as evidenced by their stipu-
lation hereto attached and herewith filed, the Court
doth

Order, Adjudge and Decree that the defendant
LaSalle Candy Shop, Incorporated, its officers, share-
holders, agents, servants and employees and each of
them be and they are hereby forever and perpetually
enjoined and restrained

(a) From infringing upon the trade rights of plain-
tiff described in the bill of complaint;

(b) From selling and delivering, in response to
calls for Coca-Cola, any beverage other than that
made from the Coca-Cola syrup manufactured by
plaintiff.

(c) From using the name Coca-Cola or any other
name sufficiently similar to the name Coca-Cola, as to
cause deceit.

(d) From selling or exposing for sale, any beverage
other than plaintiff's product, Coca-Cola, having the
peculiar and distinctive color and appearance of
plaintiff's product, or any such approximation

— 477 —

THE COCA-COLA COMPANY

thereof, as may be likely to deceive the public, with-
out such differentiation as will effectually prevent
the passing off of a spurious product as and for the
product of plaintiff.

(e) That there shall be no accounting of profits or
damages herein, the same being waived by plaintiff.

(f) That plaintiff have arid recover of defendant
LaSalle Candy Shop, Incorporated, its costs herein,
to be taxed by the Clerk under the direction of the
Court and that execution issue therefor.

Dated at St. Louis, Missouri, this 25th day of Sep-
tember, 1918.

DAVID P. DYER,

Judge.

STIPULATION.

The parties hereto hereby consent to the entry of
the above and foregoing decree.

Dated at St. Louis, Missouri, this 25th day of Sep-
tember, 1918.

Candler, Thomson & Hirsch, James Love Hopkins,
Attorneys for Plaintiff.

Joseph Block, Attorney for Defendant.

— 478 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT

OF KENTUCKY, AT BOWLING GREEN

No. 2— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

OSCAR C. FLETCHER, doing business as FLETCH-
ER DRUG COMPANY, Defendant.

FINAL DECREE.

Complainant and defendant having this day ten-
dered a stipulation in writing, .which is now ordered
filed, agreeing that the verified allegations of the
bill of complaint are true and consenting that this
action may be now finally submitted to the Court
upon the bill of complaint and said stipulation, and
the Court now being sufficiently advised, it is
ordered, considered and adjudged that the defend-
ant, Oscar G. Fletcher, doing business as the Fletcher
Drug Company, its agents, servants and employes
and each of them be and they are hereby enjoined:

1. From infringing upon the trade rights of the
Coca-Cola Company, as in the Bill of Complaint de-
scribed, and from the further commission of the acts
of substitution as therein described.

2. From selling and delivering in response to re-
quests of orders for Coca-Cola any beverage other
than that made from the Coca-Cola syrup manufac-
tured by the complainant.

3. From using any name sufficiently similar to the
name "Coca-Cola," or any name applied to any drink,
as to cause deceit.

— 479 —

THE COCA-COLA COMPANY

4. From marketing a product of the same identical
or similar color as the product of the complainant
so as to cause deceit.

5. From selling or exposing for sale any beverage
other than the product Coca-Cola, having the peculiar
and distinctive color and appearance of its product,
or any such approximation thereof as may be likely
to deceive the public, without such differentiation as
will effectually prevent the passing off of a spurious
product as and for the product of the complainant.

No accounting of profits or damages in the premises
is required of the defendant.

The defendant will pay the costs of this action.

This action is reserved for such further and other
orders and proceedings as may be necessary to up-
hold and enforce this decree.

Entered February 21, 1917. »

A Copy: Attest.
A. C. ARNOLD,

Clerk.

— 480 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT

OF KENTUCKY, AT BOWLING GREEN

No. 2— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

OSCAR C. FLETCHER, doing business as
FLETCHER DRUG COMPANY,

Defendant.

ORDER.

This day appeared the plaintiff, The Coca-Cola
Company, by Alfred Selligman, its counsel, and
moved the Court as follows:

"Now comes the plaintiff and moves the Court
for a rule upon the defendant to show cause why
he should not be attached for contempt for vio-
lation of the injunction heretofore granted in this
cause, and for the reason says that on or about
the 21st day of February, 1917, a decree was
rendered herein enjoining Oscar C. Fletcher, his
agents, servants and employes, and each of them:

"1. From infringing upon the trade rights of
The Coca-Cola Company as in the bill of com-
plaint described, and from his further commis-
sion of the acts of substitution as herein de-
scribed.

"2. From selling and delivering in response to
requests or orders for Coca-Cola any beverage
other than that made from the Coca-Cola syrup
manufactured by the complainant.

— 481 —

THE COCA-COLA COMPANY

"3. From using any name sufficiently similar
to the name Coca-Cola or any name applied to
any drink as to cause deceit.

"4. From marking a product of the same, iden-
tical or similar color as the product of the com-
plainant so as to cause deceit.

"5. From selling or exposing for sale any bev-
erage other than the product Coca-Cola having a
peculiar and distinctive color and appearance of
its product, or any such approximation thereof
as may be likely to deceive the public, without
such differentiation as will effectually prevent the
passing off of a spurious product as and for the
product of the complainant.

"6. That the said decree is still in force and
effect, and a copy of said decree is hereto at-
tached and marked Exhibit 'A' and made a part
hereof.

"7. That since the issuing of said injunction
defendant, in violation of the rights of the plain-
tiff and of the injunction aforesaid, has sold a
product in response to requests for Coca-Cola a
beverage other than that made from the Coca-
Cola syrup manufactured by the complainant, and
that it has further sold a product other than
Coca-Cola having a color similar in approxima-
tion of the peculiar and distinctive color and ap-
pearance of Coca-Cola without such differentia-
tion as will effectually prevent the passing off of
a product as and for the product of the com-
plainant to the great and irreparable damage and
injury to the complainant.

"Wherefore, complainant prays:

"(a) For an order that a rule be issued on the
defendant to appear before this Court to show
cause why it should not be committed- or fined for
contempt for violation of the injunction hereto-
fore ordered and issued in this cause;"

— 482 —

v. OSCAR C. FLETCHER, etc.

and in support of said motion filed the affidavits of J.
F. Wimbish, W. C. Dumas, Franklin S. Chalmers,
Charles Howard Candler, C. E. Caspari, William W.
Rigsby, B. J. Sells, E. L. Roddy and W. P. Heath.

It is ordered that the above motion be set for hear-
ing in the Federal Court Hall at Louisville, Kentucky,
at 10 o'clock a. m., Monday, January 30, 1922,. and the
Clerk is directed to give notice of said hearing to
the defendant by mailing to him at Bowling Green,
Kentucky, a certified copy of this order.

UNITED STATES OF AMERICA, ) ^

WESTERN DISTRICT OF KENTUCKY, j k

I, A. G. RONALD, Clerk of the District Court of the
United States, for said Western District of Kentucky,
do hereby certify the above and foregoing to be a true
and complete copy of the order entered in said court,
on the 24th day of January, A. D. 1922, in the cause
wherein The Coca-Cola Company is the Plaintiff and
Oscar C. Fletcher, doing business as Fletcher Drug
Company, is the Defendant, as the same appears from
the original now remaining in my custody and con-
trol.

In Testimony Whereof, I have hereunto set my
hand and affixed the seal of said court, this 15th day
of February, A. D. 1922.

(Sd.) A. G. RONALD, Clerk,

By M. W. BEARD, D. C.

— 483 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT

OF KENTUCKY, AT BOWLING GREEN

THE COCA-COLA COMPANY, Complainant,

v.

OSCAR C. FLETCHER, doing business as

FLETCHER DRUG COMPANY,

Defendant.

Comes the plaintiff, The Coca-Cola Company by
Selligman <& Selligman, its attorneys, and Oscar C.
Fletcher, in his own proper person and by Thomas,
Thomas & Logan, his attorneys, jand state:

1. That since motion for the issuing of a rule herein
the defendant has paid to the complainant the sum of
$250.00 which has been accepted in lieu of an ac-
counting which may be due by the defendant to the
Complainant to this date for a violation of the said
injunction entered herein.

2. The complainant and the defendant respectfully
submit this matter to the Court, the complainant
stating that any nominal fine which it may please the
Court to enter for the violation of the injunction
herein, carrying with it the costs of this proceeding
will be satisfactory to the said complainant.

3. The original decree entered herein shall continue
in full force and effect, and this action shall be re-
served for such further and other orders and pro-
ceedings as may be necessary to uphold and enforce
the said original decree.

Candler, Thomson & Hirsch, Selligman & Sellig-
man, Attorneys for Complainant.

Oscar C. Fletcher.

Thomas, Thomas & Logan, Attorneys for Defendant.

— 484 —

v. OSCAR C. FLETCHER, etc.

UNITED STATES OF AMERICA, |

WESTERN DISTRICT OF KENTUCKY. J

I, A. G. RONALD, Clerk of the District Court of the
United States, for said Western District of Kentucky,
do hereby certify the above and foregoing to be a
true and complete copy of the Agreement entered in
said court, on the 30th day of January, A. D. 1922, in
the cause wherein The Coca-Cola Company is the
Complainant and Oscar C. Fletcher, doing business as
Fletcher Drug Company the Defendant, as the same
appears from the original now remaining in my
custody and control.

In testimony whereof, I have hereunto set my hand
and affixed the seal of said court, this 21st day of
February, A. D. 1922.

A. G. RONALD, Clerk,
By M. W. BEARD, D. C.

— 485 —

THE COCA-COLA COMPANY

UNITED STATES DISTRICT COURT,
WESTERN DISTRICT OF KENTUCKY

THE COCA-COLA COMPANY, Complainant,

v.
OSCAR C. FLETCHER, Defendant.

ORDER.

The parties have agreed that the defendant pay to
complainant the sum of $250 in lieu of an accounting
to this date and agreeing that the costs of this case
be paid by defendant, it is ordered that the motion
for* said rule be dismissed, tha^t defendant pay the
costs of this proceeding; that this action be retained
for such further rules and orders as may be necessary
to enforce the original decree herein which is con-
tinued in full force and effect.

WALTER EVANS, Judge.

Seen: Thomas, Thomas & Logan, for Defendant.

Candler, Thomson & Hirsch, Selligman & Sellig-
man, for Complainant.

Entered: January 30, 1922.

UNITED STATES OF AMERICA.
WESTERN DISTRICT OF KENTUCKY.

I, A. G. RONALD, Clerk of the District Court of the
United States, for said Western District of Kentucky,
do hereby certify the above and foregoing to be a true
and complete copy of the Order entered in said court,
on the 30th day of January, A. D. 1922, in the cause
wherein The Coca-Cola Company is the Plaintiff and
Oscar C. Fletcher, doing business as Fletcher Drug

— 486 —

v. OSCAR C. FLETCHER

Company is the Defendant, as the same appears
from the original now remaining in my custody and
control.

In testimony whereof, I have hereunto set my hand
and affixed the seal of said court, this 15th day of
February, A. D. 1922.

A. GL RONALD, Clerk,
By M. W. BEAKD, D. C.

— 487 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DIVISION
OF THE WESTERN DISTRICT OF
TENNESSEE, AT JACKSON

No. 23— IN EQUITY

THE COCA-COLA COMPANY

v.
L. W. BATES.

This cause by consent and agreement of the parties
was this day finally heard by the Court upon the
entire record in the cause including the written
agreement of the parties heretofore filed in the cause
as a part of the record, whereupon it is ordered, ad-
judged and decreed by the Court, by and with the
consent of the parties to this suit as evidenced by
their said written agreement, that the temporary
injunction heretofore granted by interlocutory decree
of the Court entered in this cause, be and the same
is hereby made permanent and that the defendant
L. W. Bates be and he is hereby perpetually en-
joined:

1st. From in any way or manner selling a product
as and for Coca-Cola, or in any way or manner pass-
ing off any product as and for Coca-Cola, that is not
the product of The Coca-Cola Company, the com-
plainant herein:

2nd. From marketing a product with the same
identical color so long used by the complainant in
marketing its product unless it be distinctly tagged
with the name of the real producer, in such manner
that the ultimate consumer will be fairly advised that
he is not getting complainant's Coca-Cola, but is
getting something else, and that if sold in bottles or
other containers that the same shall be stamped and

— 488 —

v. L. W. BATES

labeled prominently with the name of the product:

3rd. From using a crown upon bottles containing
a product other than Coca-Cola as manufactured and
sold by complainant, which is decorated with the
same character of script so long used by The Coca-
Cola Company to designate its product or having
thereon a name similar to the name of complainant,
or from using any crown so decorated that it will
tend to cause confusion and deception to the ultimate
consumer :

4th. From selling any product that is not Coca-Cola
as and for Coca-Cola when Coca-Cola is called for,
and from using said name Coca-Cola as applied to any
product except the product of the complainant in this
cause :

And that the defendant and all of his associates,
salesmen, servants, clerks, agents, workmen, employes
and attorneys, and each and every person claiming
by, through, or under said defendant, or in any way
connected with his business, be perpetually enjoined
and restrained as aforesaid.

It is further ordered, adjudged and decreed by the
Court, by and with the consent of the parties, that
the complainant The Coca-Cola Company have and
recover of the defendant L. W. Bates all the cost of
this suit for the collection of which execution is
awarded, and further that so much of the Bill as
seeks any recovery against the defendant L. W. Bates
as damages be and the same is hereby dismissed,
without any cost, however, to the complainant as
by the agreement of the parties all the cost of the
suit is to be paid by the defendant L. W. Bates as
above adjudged.

Enter : McCALL,

Judge.

Above Decree Approved and 0. K.
Candle r, Thomson & Hirsch, and W. G. Timber-
lake et al., Solicitors for The Coca-Cola Company.
L. L. Fonville, Solicitor for L. W. Bates.

— 489 —

THE COCA-COLA COMPANY

I, J. SAM JOHNSON, Clerk of the District Court of
the United States, for the Western District of Ten-
nessee, do hereby certify that the paper hereto at-
tached is a full, true and correct copy of the original
Order making the Temporary Injunction Permanent
in said Court as the same now appears of record and
upon the files in my office, in the following cause,
to wit : The Coca-Cola Company v. L. W. Bates.

In Testimony Whereof, I have hereunto written my
name and affixed the Seal of said Court, at my office
in the City of Jackson, Tennessee, this 29th day of
August, 1922, and of the Independence of the United
States the 147th Year.
(Seal) J. SAM JOHNSON, Clerk.

AUTHENTICATION.

I, J. W. Ross, a Judge of said Court, do hereby
certify that J. Sam Johnson, whose genuine signature
appears to the foregoing certificate is, and Was at the
date of the same, Clerk of said Court and that his
attestation is in due form.

J. W. Ross,

Judge of the District Court of the
United States for the District
aforesaid.

— 490 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DIVISION

OF THE WESTERN DISTRICT OF

TENNESSEE, AT JACKSON

No. 23— IN EQUITY

THE COCA-COLA COMPANY

v.
L. J. BATES.

This cause by consent and agreement of the par-
ties was this day finally heard by the Court upon the
entire record in the cause including the written agree-
ment of the parties heretofore filed in the cause as a
part of the record, whereupon it is ordered, adjudged
and decreed by the Court, by and with the consent
of the parties to this suit as evidenced by their said
written agreement, that the temporary injunction
heretofore granted by interlocutory decree of the
Court entered in this cause, be and the same is hereby
made permanent and that the defendant L. J. Bates
be and he is hereby perpetually enjoined:

1st. From in any way or manner selling a product
as and for Coca-Cola, or in any way or manner pass-
ing off any product as and for Coca-Cola, that is not
the product of The Coca-Cola Company, the com-
plainant herein:

2nd. From marketing a product with the same iden-
tical color so long used by the complainant in market-
ing its product unless it be distinctively tagged with
the name of the real producer, in such manner that
the ultimate consumer will be fairly advised that he
is not getting complainant's Coca-Cola, but is getting
something else, and that if sold in bottles or other
containers that the same shall be stamped .and labeled
prominently with the name of the product;

— 491 —

THE COCA-COLA COMPANY

3rd. From using a crown upon bottles containing a
product other than Coca-Cola as manufactured and
sold by complainant, which is decorated with the
same character of script so long used by the Coca-
Cola Company to designate its product or having
thereon a name similar to the name of complainant,
or from using any crown so decorated that it will
tend to cause confusion and deception to the ulti-
mate consumer;

4th. Prom selling any product that is not Coca-
Cola as and for Coca-Cola when Coca-Cola is called
for, and from using said name Coca-Cola as applied
to any product except the product of the complainant
in this cause.

And that the defendant and all of his associates,
salesmen, servants, clerks, agents, workmen, employes
and attorneys, and each and evbry person claiming
by, through or under said defendant, or in any way
connected with his business, be perpetually enjoined
and restrained as aforesaid.

It is further ordered, adjudged and decreed by the
Court, by and with the consent of the parties, that
the complainant The Coca-Cola Company have and re-
cover of the defendant L. J. Bates all the cost of this
suit for the collection of which execution is awarded
and further that so much of the bill as seeks any re-
covery against the defendant, L. J. Bates, as damages
be and the same is hereby dismissed, without any
cost, however, to the complainant as by the agree-
ment of the parties all the cost of the suit is to be
paid by the defendant L. J. Bates as above ad-
judged.

Enter :

Above Decree Approved' and 0. K.

Candler, Thomson & Hirsch, and W. G. Timber-
lake et al., Solicitors for The Coca-Cola Company.

L. L. Fonvllle, Solicitor for L. J. Bates.

— 402 —

v. L. J. BATES

I, J. SAM JOHNSON, Clerk of the District Court of
the United States, for the Western District of Ten-
nessee, do hereby certify that the paper hereto at-
tached is a full, true, perfect and correct copy of the
original order making the Temporary Injunction Per-
manent in said Court as the same now appears of
record and upon the files in my office, in the follow-
ing cause, to wit:

The Coca-Cola Company

v.

L. J. Bates.

In Testimony Whereof, I have hereunto written my
name and affixed the Seal of said Court, at my office
in the City of Jackson, Tennessee, this 29th day of
August, A. D. 1922, and of the Independence of the
United States the 147th Year.

J. SAM JOHNSON, Clerk.

AUTHENTICATION.

I, J. W. Ross, a Judge of said Court, do hereby
certify that J. Sam Johnson, whose genuine signa-
ture appears to the foregoing certificate is, and was at
the date of the same, Clerk of said Court and that
his attestation is in due form.

J. W. Ross,

Judge of the District Court of the
United States for the District
aforesaid.

— 493 —

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE DISTRICT OF

NEBRASKA, OMAHA

DIVISION

No. 474— IN EQUITY

I

THE COCA-COLA COMPANY, Plaintiff,

v.

W. W. YAGER, trading as CURO MINERAL
SPRINGS COMPANY, Defendant.

FINAL DECREE.

CANDLER, THOMSON & HIRSCH,
KENNEDY, HOLLAND, DELACY & MCLAUGHLIN,
Solicitors for Plaintiff.

MURPHY & WINTERS,

Solicitors for Defendant.

— 494 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF

NEBRASKA, OMAHA DIVISION

No. 474— IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.

W. W. YAGER, trading as CUEO MINERAL
SPRINGS COMPANY, Defendant.

FINAL DECREE.

This cause coming on for final hearing (the defend-
ant consenting thereto), it is Ordered, Adjudged and
Decreed as follows :

I.

That the Court has jurisdiction of the subject mat-
ter and of the parties to this suit.

II.

That the word " Coca-Cola" is a valid trade-mark
of which the plaintiff is the sole owner.

III.

That plaintiff alone is entitled to use the trade-
mark " Coca-Cola" and that its goods alone can law-
fully be sold under that name.

IV.

That The Coca-Cola Company, a Georgia corpo-
ration, then being the owner of the trade-mark ' ' Coca-
Cola," duly registered its said trade-mark under and
in conformity with the Act of Congress, approved
March 3, 1891, entitled: "An Act to authorize the
registration of trade-marks and to protect the same,"
and under the Act of Congress of February 20, 1905,
entitled: "An Act to authorize the registration of

— 495 —

THE COCA-COLA COMPANY

trade-marks used in commerce with foreign nations
or among the several states or with Indian tribes and
to protect the same"; that said registrations, num-
bered 22,406 and 47,189, respectively, are valid and
subsisting and, in connection with the business and
good will, by proper assignments duly recorded, as
provided by law, became and now are the sole prop-
erty of the plaintiff, and that the plaintiff is entitled
to the rights and remedies provided in said statutes.

V.

That the words "Curo-Cola," "Curo" and "Cola,"
adopted and used by defendant in connection with
merchandise sold by him, are infringements of plain-
tiff 's said trade-mark "Coca-Cola," are copies or
colorable imitations thereof within the meaning of
the Act of Congress of February 20, 1905; and that
the defendant has affixed one oij more of said copies
or colorable imitations to merchandise of substantially
the same descriptive properties as those set forth in
plaintiff's said registrations, and has used one or
more of said copies or colorable imitations in com-
merce among the several states of the United States,
and that defendant thereby has infringed plaintiff's
said registered trade-mark.

VI.

That defendant has applied to packages containing
his said product, decorated crowns with a color
scheme and script lettering thereon so nearly re-
sembling the distinctive decorated crowns of the
plaintiff, that defendant thereby has competed un-
fairly with the plaintiff.

VII.

That the said defendant, W. W. Yager, his agents,
servants, employes, attorneys, assigns and licensees,
and all acting by or under his authority be, and the
same hereby, each and all are perpetually enjoined
and restrained from using or employing, in connec-
tion with advertising, or offering for sale, or sale of
any beverage or ingredient thereof, plaintiff's trade-

— 496 —

v. W. W. YAGER, Etc.

mark "Coca-Cola" or any like word, or the colorable
imitation thereof "Curo-Cola" or any like word, or
the colorable imitation thereof "Curo" or any like
word, or the colorable imitation thereof "Cola" or
any like word, and from using script lettering identi-
cal with or like the script lettering used by the plain-
tiff or defendant (upon beverages or ingredients of
beverages of the same descriptive properties as the
beverages of plaintiff), and from selling or offering
for sale, furnishing or supplying, in response to re-
quests for Coca-Cola, any product, not the plaintiff's,
to requests for Coca-Cola, and further, from doing
any act or thing, or using any name, artifice or con-
trivance which may be calculated or likely to cause
any product not the plaintiff's to be sold as and for
the product of plaintiff; and especially from using
any bottles bearing the imprint of the trade-mark
"Coca-Cola"; and that a writ of perpetual injunc-
tion issue accordingly.

VIII.

That the plaintiff is entitled to have and recover of
and from the said defendant, the profits derived by
said defendant by reason of his infringements and un-
fair competition herein restrained, and for the dam-
ages sustained by the plaintiff by reason thereof, and
said plaintiff electing to waive said accounting of
damages and profits, the Court finds the sum of $1.00
in lieu thereof, and it is further Ordered, Adjudged
and Decreed that plaintiff do have and recover of
and from said defendant the said sum of $1.00, to-
gether with the costs of this suit to be taxed, and
have execution therefor, attorneys' docket fee being
waived not to be taxed.

Enter this 20th day of November, 1922.

J. W. WOODROUGH,

United States District Judge.

— 497 —

THE COCA-COLA COMPANY

We consent to the entry of this decree :

Candler, Thomson & Hirsch, Kennedy, Holland,
DeLacy & McLauglilin, Solicitors for Plaintiff.

Murphy & Winters, Solicitors for Defendant.

UNITED STATES OF AMERICA,)
DISTRICT OF NEBRASKA, > ss.

OMAHA DIVISION. )

I, R. C. HOYT, Clerk of the United States District
Court for the District of Nebraska, do hereby certify
that the foregoing is a true and correct copy of the
original thereof, which original is now in my custody
as such Clerk.

Witness my hand as Clerk, and the seal of said
Court, at Omaha, Nebraska, tliis 20th day of No-
vember, 1922.

R. C. HOYT, Clerk,
JOHN NICHOLSON, Deputy.

498 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT

OF MISSISSIPPI

No. 134— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.

J. T. MASON and GEORGIANA A. MASON, doing

business as CORNER DRUG STORE,

Defendants.

This cause came on to be heard at this term and
was argued by counsel for complainant, and there-
upon, upon consideration thereof, it was ordered,
adjudged and decreed as follows, viz. :

That the complainant has the sole and exclusive
right to the use of the trade-mark or trade name,
"Coca-Cola" in connection with a drink or beverage;
that the question of the amount of damages is not
decided, but is expressly left open for determination
in a separate suit should complainant desire its claim
pressed therefor; that the defendants, their associ-
ates, salesmen, servants, clerks, agents, workmen,
employees, attorneys, and each and every person
claiming by or through said defendants be and they
are hereby enjoined and restrained from infringing
upon the trade-mark "Coca-Cola" and the trade
rights of complainant set out in the bill of complaint
and from the further commission of the acts of sub-
stitution complained of in the bill of complaint filed
in this cause, and from applying to any syrup not
manufactured by complainant the name "Coca-Cola"
or any other word or words of like sound or import
and from selling and delivering in response to re-
quests or orders for Coca-Cola any beverage other
than that made from the "Coca-Cola" syrup manu-
factured by complainant and from using any name
sufficiently similar to the name "Coca-Cola" to cause

— 499 —

THE COCA-COLA COMPANY

deceit, and from marketing a product of the same
identical or similar color so long used by complain-
ant in marketing its product as set out in said bill
of complaint and shown by the proof; and from sell-
ing or exposing for sale any beverage other than
complainant's product "Coca-Cola" having the same
peculiar and distinctive appearance and color of com-
plainant's said product or any such approximation
thereof as may be likely to deceive the public, with-
out such differentiation as will effectually prevent the
passing off of a spurious product as and for the said
product of the complainant, and from marketing a
product with the same identical or similar color as
that used by the complainant in marketing its prod-
uct when the customer asks for Coca-Cola, the prod-
uct of complainant, whether the request is made for
Coca-Cola in its proper name, "Qoca-Cola", or in any
other name or designation commonly applied to the
said product of complainant and intended to desig-
nate the same.

It is further ordered, adjudged and decreed that the
complainant, The Coca-Cola Company, a corporation,
do have and recover of and from the defendants, J. T.
Mason and Mrs. Georgiana Mason, doing business as-
Corner Drug Store, all costs of this suit, including
the costs of the taking of the depositions on file in
this cause, for which let execution issue.

So ordered, adjudged and decreed by the Court on
this the 15th day of February, A. D. 1915.

H. C. NILES,
Judge.

IN THE DISTRICT COURT OF THE UNITED STATES \
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, > ss.
SOUTHERN DIVISION. )

In Equity.

I, JACK THOMPSON, Clerk of the District Court of
the United States for the Southern District of

— 500 —

v. J. T. MASON, etc.

Mississippi, hereby certify that the foregoing attached
ten and a half typewritten pages are full, true and
correct copies of the originals on file and of record
in my office at Biloxi, in the southern division of said
district.

Given under my hand and seal of said District
Court, at Biloxi, in said District, on the 22nd day of
August, A. D. 1922.

(Seal) JACK THOMPSON, Clerk,

By GEO. P. MONEY, D. C.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Stevens
& Cook, Hattiesburg, Miss., for Complainant.

— 501 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT

OF TEXAS, AT TYLER, TEXAS

JANUARY 29, 1918

THE COCA-COLA COMPANY
v.

WEEKS & WEAVER, a partnership composed of the
sole partner of J. M. Weeks.

It being made to appear to the Court the parties
hereto have entered into the following stipulations,
to wit: )

"!N THE DISTRICT COURT OF THE
COCA-COLA _,

-, UNITED STATES FOR THE EAST-

COMPANY m

ERN DISTRICT OF TEXAS, AT

TYLER. TEXAS. JANUARY 29,

T ^f TT

J. M. WEEKS

"It Is Hereby Stipulated by and between the par-
ties, plaintiff and defendant, in the above styled
cause, that the plaintiff may have its decree against
the defendant as prayed for, with the exception that
no decree will be entered for damages. This stipula-
tion will be treated as an appearance and to fully au-
thorize the decree above-mentioned to be entered in
favor of plaintiff and against the defendant."

It Is, Therefore, Ordered, Adjudged and Decreed
by the Court that the defendant, John M. Weeks, his
agents, servants, employes, successors and assigns,
and each and all of them be, and they are hereby
perpetually enjoined and restrained from using in
connection with the manufacture, advertising, offer-
ing for sale, or selling any beverage with the words
" Coca-Cola," or any like word or words, whether

— 502 —

v. WEEKS & WEAVER, etc.

alone or in connection with other words or names, and
further from doing any act or thing, or using any
name or names, contrivances, artifices, or device,
which may be calculated to lead or induce the belief
that any bottled product not authorized by plaintiff
is Coca-Cola.

It Is Further Ordered, Adjudged and Decreed by
the Court that the plaintiff pay all costs of Court
for which the officers of this Court may have their
execution.

GOKDON RUSSELL, Judge.

Candler, Thomson & Hirsch, Atlanta, Georgia;
Crane & Crane, Dallas, Texas ; //. 0. Head, Sherman,
Texas, for Complainant.

— 503 —

THE COCA-COLA COMPANY

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN
DISTRICT OF NORTH CAROLINA

IN EQUITY

COMPLAINT

THE COCA-COLA COMPANY, Plaintiff,

v.

LEE J. TAYLOR, doing business as CROWN
BOTTLING WORK^ Defendant.

DECREE.

This cause came on to be heard at this Term, and by
consent of defendant hereto, upon motion of counsel
for plaintiff, it is adjudged, ordered and decreed as
follows :

1. That the complainant herein is the owner of
the trade-mark Coca-Cola, which said mark is a valid
trade-mark belonging to said complainant.

2. It is further adjudged, ordered and decreed that
the defendant, his associates, successors, assigns, of-
ficers, servants, clerks, agents and workmen, and each
of them, be and they are perpetually enjoined:

(a) From using said trade-mark Coca-Cola, or any
colorable imitation thereof in any form whatsoever,
except as authorized and assented to by the com-
plainant herein.

(b) From in any way, manner or form using the
Coca-Cola syrup which is made for fountain pur-
poses, for bottling purposes, and from in any way

— 504 —

v. LEE J. TAYLOE, etc.

using the name Coca-Cola, or any colorable imitation
thereof, as applied to any soft drink or beverage,
in bottles.

(c) From using the trade-mark Coca,-Cola, or any
colorable imitation thereof, without the authority of
the complainant, and from using said trade-mark
Coca-Cola, or any colorable imitation thereof, on bot-
tles containing the fountain syrup manufactured by
complainant; and from using said trade-mark Coca-
Cola, or any colorable imitation thereof, in connec-
tion with any product that is not the product of your
orator; and that the defendant, his associates, suc-
cessors, assigns, officers, servants, clerks, agents and
workmen be likewise perpetually enjoined from put-
ting out, selling or offering for sale, directly or in-
directly, any soft drink or beverage under the name
Coca-Cola, or any colorable imitation thereof, with-
out the authority and permission of the Company or
its agents, and from using the word Coca-Cola, or
any colorable imitation thereof, in connection with
the sale of any beverage without the consent of the
complainant herein.

(d) That by consent of the parties to said cause
this injunction is hereby made perpetual.

(e) That by consent of the parties to said cause
this injunction shall take effect immediately upon
the date hereof; this decree to be entered and en-
rolled as of April Term, 1913.

(f) That the plaintiff do recover against the de-
fendant the costs of the suit to be taxed by the clerk.

This 7th day of February, 1913.

(Signed) H. G. CONNOR,
Judge of the District Court for the East-
ern District of North Carolina.

Consented to :

Candler, Thomson & Hirsch, Charles R. Thomas,
Solicitors for Plaintiff Coca-Cola Company.

Lee J. Taylor, Crown Bottling Works, Defendant.

— 505 —

THE COCA-COLA COMPANY

I, GEO. GREEN, Deputy Clerk of the District Court
of the United States within and for the District
aforesaid, do hereby certify that the foregoing is a
true and correct copy of the decree in the case of
The Coca-Cola Company, Plaintiff, v. Lee J. Taylor,
doing business as Crown Bottling Works, Defend-
ant, as filed in said court.

In Testimony Whereof, I hereunto set my hand and
affix the seal of the said court at New Bern, this llth
day of February, 1913.
(Seal) GEO. GREEN,

Deputy Clerk of the District Court
of the United States for the East-
ern District of North Carolina.

— 506 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE WESTERN DIVISION
OF THE SOUTHERN DISTRICT
OF MISSISSIPPI

THE COCA-COLA COMPANY

v.
SOUTHEEN BOTTLING WORKS.

DECREE.

It appearing that the defendant is erroneously de-
scribed in the bill of complaint as the " Southern
Bottling Company," and that its true and correct
name is the " Southern Bottling Works," and this
appearing from a motion filed herein by the Southern
Bottling Works on July 23, 1915, to dismiss the bill
of complaint herein for certain causes therein stated,
and the said motion having been duly set down for
hearing;

It Is Ordered that the bill of complaint be amended
so that the defendant thereto shall be described as
the "Southern Bottling Works," instead of the
"Southern Bottling Company;" and the said motion
to dismiss coming on to be heard, it- is ordered and
adjudged that the same be and is hereby overruled.

And the defendant, the said Southern Bottling
Works, having declined to answer said bill or plead
further herein, it is ordered that the said bill of com-
plainant be and it is hereby taken for confessed as
against the said defendant, the Southern Bottling
Works.

It is thereupon ordered, adjudged and decreed that
the complainant, The Coca-Cola Company, has the
sole and exclusive right to the use of the mark or

— 507 —

THE COCA-COLA COMPANY

name "Coca-Cola" in connection with a drink or bev-
erage, and also that The Coca-Cola Company has the
sole and exclusive right to the use of the mark or
name " Coca-Cola " as a trade-mark.

And it is further ordered, adjudged and decreed
that the defendant, the Southern Bottling Works, its
officers, agents, servants, employes, successors, and as-
signs, each and all of them be and they are hereby
perpetually enjoined and restrained from using in
connection with the manufacture, advertisement, of-
fering for sale or sale of any beverage the words
" Coca-Cola " either alone or in connection with other
words or names, and further from doing any act or
thing, or using a name or names, contrivance, artifice
or device, which might be calculated to represent or
induce the belief that any bottled product not author-
ized by complainant is "Coca-Cbla."

And the complainant consenting thereto, it is
ordered that it pay the costs accrued in this cause to
be taxed, etc.

So ordered and decreed this the 14th day of Jan-
uary, 1918.

H. C. NILES, Judge.

I, JACK THOMPSON, Clerk of the said United States
District Court, in and for the said Southern District
of Mississippi, do hereby certify that the above and
foregoing is a full, true and correct copy of the orig-
inal Final Decree in the above-styled matter as fully
as the same appears of record and on file in this
office.

Witness my hand and the seal of said District
Court this the 25th day of February, A. D. 1922.

JACK THOMPSON,, Clerk,
J. H. SHORT, D. C.
(Seal)

Candler, Thomson & Hirsch, Atlanta, Ga. ; Catch-
ings & Catching st Vicksburg, Miss., for Complainant.

— 508 —

IN THE DISTRICT COURT OF THE UNITED
STATES FOR THE EASTERN DIS-
TRICT OF ILLINOIS

Wednesday, November 3, A. D. 1915

Present: HONORABLE FRANCIS M. WRIGHT, Judge.

THE COCA-COLA COMPANY, Plaintiff,

v.
FRANK SIMMS, Defendant.

FINAL DECREE.

This cause coming on for final hearing upon the
verified bill of complaint herein and the answer of
said defendant, the said defendant consenting thereto,
It Is Ordered, Adjudged and Decreed as follows :

That the Court has jurisdiction of this cause and of
the parties hereto;

That the plaintiff, Coca-Cola Company, has a valid
trade-mark in the words "Coca-Cola" and is entitled
to the exclusive use thereof;

That the defendant by his use of the words " Coca-
Cola " in connection with a bottled drink not being
made, carbonated, bottled and sold under plaintiff's
authority and supervision has infringed plaintiff's
said exclusive right;

That the allegations of the bill of complaint are
true; that the equities of the case are with the plain-
tiff; and that plaintiff is entitled to the relief prayed;

That defendant, his agents, servants, employes,
successors and assigns and each and all of them be,

— 509 —

THE COCA-COLA COMPANY

and the same hereby are perpetually enjoined and
restrained from using in connection with the manu-
facture, advertisement, offering for sale or sale of
any beverage, the words "Coca-Cola" or any like
word or words, whether alone or in connection with
other words or names; and further, from doing any
act or thing or using any name or names, contrivance,
artifice or device which may be calculated to represent
or induce the belief that any bottled product not
authorized by plaintiff is Coca-Cola, and that a writ
of perpetual injunction issue accordingly.

That plaintiff is entitled to recover of and from the
said defendant the damage suffered by it from de-
fendant's infringement of plaintiff's trade-mark, and
the profits and gains acquired by defendant by reason
thereof. But it appearing to the court that the matter
of such damages and profits hus been agreed upon
between the parties, no order is made with respect
thereto.

And It Is Further Ordered, Adjudged and Decreed
that plaintiff is entitled to recover of and from the
said defendant the costs of this suit to be taxed and
have execution therefor.

This decree as to damages, profits and costs paid
and satisfied in open court, this 3rd day of November,
1915.

Candler, Thomson & Hirsch, Charles Troup, Solici-
tors for Plaintiff.

— 510 —

No. 69— JEFFERSON

No. 217— TYLER

IN EQUITY

THE COCA-COLA COMPANY, Complainant.

v.

THE JACKSONVILLE BOTTLING WORKS,

Defendant.

FINAL DECREE.

On this the 23rd day of February, A. D. 1916, the
above numbered and styled cause came on to be
heard on the bill, answer, exhibits and evidence; and
the Court after hearing the same and the argument
of counsel thereof is of the opinion that the com-
plainant is entitled to the relief prayed for:

It Is, Therefore, Ordered, Adjudged and Decreed
by the Court that the defendant, The Jacksonville
Bottling Works, its servants, agents and employes be,
and they hereby are, enjoined and restrained from
bottling and selling in bottles under the name Coca-
Cola applied to any drink, and from using any name
sufficiently similar to the name Coca-Cola as applied
to any drink, to be calculated to cause a proposed
purchaser to mistake the same for the drink Coca-
Cola authorized by and prepared and bottled under
the contracts between complainant, The Coca-Cola
Company and The Coca-Cola Bottling Company and
Coca-Cola Bottling Company described in the bill of

— 511 —

THE COCA-COLA COMPANY

complaint, whether the drink so prepared or sold by
defendant be made by using the syrup manufactured
by complainant for use at fountains commonly known
as fountain syrup or otherwise, the said defendant
being enjoined and restrained, from manufacturing
and from selling and offering for sale any drink of
any kind whatever under the name of or as Coca-Cola,
the complainant being adjudged and decreed to own,
and be entitled to, said name Coca-Cola as a trade-
mark for the protection of the drink made from its
bottling syrup and bottled and sold under its author-
ity as Coca-Cola, and that a drink made from what
is termed in the bill of complaint as fountain syrup,
and bottled and sold as Coca-Cola is and would be
a violation of such trade-mark.

It Is Further Ordered and Decreed that complain-
ant do have and recover from th^e defendant all costs
in this behalf incurred, from which execution may
issue.

To which action and ruling of the Court the defend-
ant in open Court excepted and prayed and appealed
to the Circuit Court of Appeals which is hereby
allowed, and the Clerk is ordered to enter this order
of record at the Jefferson Division of the Court.

(Signed) GOBDON RUSSELL, Judge.

Candler, Thomson & Hirsch, Atlanta, Georgia;
Crane & Crane, Dallas, Texas, for Complainant.

— 512 —

THE COCA-COLA COMPANY, Complainant,

v.

DAN GALLAGHEK, doing business under the firm
name and style of DAN GALLAGHER BOT-
TLING COMPANY, Defendant.

November 5, 1917.

DECREE.

This cause this day coming on to be heard and
being regularly reached on call of the docket, comes
the complainant, by its Solicitors, Candler, Thomson
& Hirsch and James D. Head, and comes also the de-
fendant Dan Gallagher, doing business under the firm
name and style of Dan Gallagher Bottling Company,
by his Solicitors, Maliaffey, Keeney & Dalby, and
thereupon this cause is submitted to the Court upon
the Stipulation for Decree herein duly filed this day,
and upon consideration of said stipulation herein
duly filed and duly signed by solicitors for both
complainant and defendant, the court is of the opin-
ion that decree should be entered in accordance with
the said stipulation.

It is, therefore, considered, ordered, adjudged and
decreed that the complainant is the sole owner of the
trade-mark, "Coca-Cola"; that the said trade-mark
has been duly registered; that the said trade-mark is
in all respects good and valid.

That the said complainant is entitled to the sole
and exclusive use of the said trade-mark, " Coca-
Cola ", upon syrup manufactured and marketed by

— 513 —

THE COCA-COLA COMPANY

it, whether bottled syrup or bulk syrup, adapted to
make a beverage by mixing with carbonated water at
soda fountains, and both called "Coca-Cola".

That the said Dan Gallagher, doing business under
the firm name and style of Dan Gallagher Bottling
Company, has heretofore wrongfully used the said
trade-mark in the making and sale of certain products
put up, bottled or manufactured by him in contraven-
tion of the rights of the complainant to the sole and
exclusive use of said term.

It is further considered, ordered, adjudged and de-
creed that the said Defendant, Dan Gallagher, doing
business under the firm name and style of Dan Gal-
lagher Bottling Company, his agents, servants, em-
ployees, successors, and assigns and each and all of
them be and they are hereby perpetually enjoined
and restrained from using in cbnnection with the
manufacture, advertisement, offering for sale, or sale,
of any beverage the words, " Coca-Cola", or any like
word or words, whether alone or in connection with
other word or words, or name, and further from
doing any act or thing or using any name or names,
contrivance, artifice, or device, which may be calcu-
lated to induce the belief that any product not au-
thorized by the Complainant, is "Coca-Cola."

It is further considered, ordered, adjudged and
decreed that the complainant recover nothing on ac-
count of profits, gains, or advantages received by the
defendant heretofore on account of the wrongful use
of said trade-mark, in accordance with the stipula-
tion herein filed, and that the complainant pay all of
the costs of this action.

Candler, Thomson & Hirsch, Atlanta, Ga. ; J.
Head, Texarkana, Arkansas, for Complainant.

Mahaffey, Keeney & Dolby, for Defendant.

— 514

No. 1136— IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.
LILY ICE & BOTTLING WORKS, Defendant.

The parties hereto consenting: It Is Decreed and
Adjudged that The Coca-Cola Company has the sole
and exclusive right to the use of the mark Coca-Cola
in connection with a syrup, a drink or a beverage.

It Is Ordered, Adjudged and Decreed that the de-
fendant, Lily Ice & Bottling Works, its agents, serv-
ants, employes, successors and assigns and each and
all of them and every person claiming or holding
under or through them or in any way connected with
their business, are hereby perpetually enjoined and
restrained from in any manner making or selling
their product in such a way as to pass off the same
as and for the product of The Coca-Cola Company,
and from using in any form whatsoever the name
Coca-C.ola as applied to any drink, or from using
any name sufficiently similar to the name Coca-Cola
as applied to any drink so as to cause deceit, and
from doing any acts in any manner or form in the
premises as is calculated to deceive, and they are
especially perpetually enjoined and restrained from
using the name Coca-Cola in connection with any
bottled beverage, and from using any bottles, contain-
ers, stoppers, crowns, labels, boxes or advertising
matter with the name Coca-Cola thereon.

It Is Further Ordered that the defendant, Lily Ice
& Bottling Works, pay all the costs accrued in this

— 515 —

THE COCA-COLA COMPANY

case and that the plaintiff recover of and from said
Lily Ice & Bottling Works the costs of this suit to
be taxed, and have execution therefor.

This 15th day of September, 1921.

We agree to the entering of the above decree:

(Signed) LILY ICE & BOTTLING WORKS,
By W. W. Goldsmith, of Counsel for Defendant.

THE COCA-COLA COMPANY,
By W. H. File, of Counsel for Plaintiff.

Candler, Thomson & Hirsch, Atlanta, Ga., General
Counsel, The Coca-Cola Company.

UNITED STATES OF AMERICA,
SOUTHERN DISTRICT OF WEST VIRGINIA.

I, ALBERT V. FITZWATER, Clerk of the District Court
of the United States for the Southern District of
West Virginia, do certify that the foregoing is a true
copy of the final decree entered in the case of The*
Coca-Cola Company v. Lily Ice & Bottling Works,
and now of record and on file in my office.

In Testimony Whereof I hereto set my hand and
the seal of said Court, at "Charleston, in said Dis-
trict, this 19th day of September, A. D. 1921, and
in the 146th year of the Independence of the United
States of America.

(Seal) (Signed) ALBERT V. FITZWATER, Clerk,

D. C. U. S. S. D. W. Va.

— 516 —

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT

OF OHIO, EASTERN DIVISION

No. 748— IN EQUITY

THE COCA-COLA COMPANY, Complainant,

v.
E. L. CALDWELL, Defendant.

FINAL DECREE.

The within cause coming on for hearing and by
and with the consent of all parties or their counsel,
it is considered, ordered and decreed:

First: That this Court has jurisdiction of the sub-
ject matter and of the parties to this suit.

Seconds That the word Coca-Cola is a valid trade-
mark, of which plaintiff is the sole owner.

Third: That plaintiff alone is entitled to use the
trade-mark Coca-Cola and that only goods manu-
factured by the plaintiff can lawfully be sold under
the name "Coca-Cola."

Fourth: That plaintiff duly registered its trade-
mark under and in conformity with the Act of Con-
gress approved March 3, 1881, entitled, "An Act to
authorize the registration of trade-marks and to pro-
tect the same." Plaintiff and its predecessors also
registered the same trade-mark under the Act of
Congress of February 20th, 1905, entitled, "An Act
to authorize the registration of trade-marks used in
commerce with foreign nations and among the sev-
eral states or with Indian tribes and to protect the
same." Said registrations are numbered 22,406 and

— 517 —

THE COCA-COLA COMPANY

47,189, respectively, and are valid and subsisting, and
are the sole property of the plaintiff, and plaintiff
is entitled to the rights and remedies provided in
the said statutes.

Fifth: That the word " Coca-Cola " as adopted
and used by the defendant was and is an infringe-
ment of plaintiff's said trade-mark Coca-Cola and
is a copy or colorable imitation thereof within the
meaning of the Act of Congress of February 20th,
1905; and that the defendant has affixed said copy
or colorable imitation to merchandise of substantially
the same descriptive properties as those set out in
plaintiff's said registration, and that defendant has
affixed said copy or colorable imitation to labels,
signs, prints, stationery, packages, wrappers and re-
ceptacles intended to be used and actually used upon
and in connection with the sale* of merchandise of
substantially the same descriptive properties as those
set forth in such registrations; and that defendant
has used said copy or colorable imitation contrary to
the rights of the plaintiff herein; and that defendant
thereby has infringed the plaintiff's said registered
trade-mark.

Sixth: That the defendant has used and applied to
packages containing its product decorated crowns
with a color scheme and script lettering thereon so
nearly the same as the distinctive crowns and script
lettering authorized and used by the plaintiff as to
be substantially indistinguishable therefrom and the
defendant has sold his product as and for the product
of the plaintiff and thereby has competed unfairly
with the plaintiff.

Seventh: That the defendant has purchased syrup
as manufactured by plaintiff for use in fountain
trade, that such syrup is not manufactured for the
purpose of nor is it intended for use in bottling; and
defendant has bottled such syrup known as fountain
Coca-Cola syrup, and has sold such fountain Coca-

— 518 —

v. E. L. CALDWELL

Cola syrup so bottled by him under the name and guise
of bottled Coca-Cola in simulation of the bottled Coca-
Cola as authorized and licensed by plaintiff to its
licensees ; that defendant had no authority nor license
to bottle and sell such fountain syrup and by such act
the defendant thereby has competed unfairly with the
plaintiff.

Eighth: That the defendant, E. L. Caldwell, his
agents, servants, employees, attorneys, licensees,
transferees, successors and assigns, and each and all
thereof, and all acting by or under his authority be
and are, each and all, perpetually enjoined and re-
strained from using, in the connection with the manu-
facture, advertisement, offering for sale or sale of any
beverage, the names Coke, Coca, Cola, Coca-Cola
or any like word or words; or from using or em-
ploying or authorizing the use or employment of
designs, devices, script lettering or crowns, identical
with or like those used by the plaintiff; from using
any bottle or crown or other article bearing trade-
mark Coca-Cola or like word or words as herein-
before referred to; and from doing any act or thing
or using any name or names, device, artifice or con-
trivance which may be calculated or likely to cause
any product not the plaintiff's to be sold as and for
the product of the plaintiff; and that writs of injunc-
tion accordingly issue forthwith.

Ninth: The defendant, E. L. Caldwell, in con-
formity with paragraph two of petition filed by plain-
tiff, is required, under oath to answer interrogatories
set out in said paragraph No. two, sub-paragraph
(a) to sub-paragraph (h) inclusive, and to attach
thereto as Exhibits the particles prayed for by
plaintiff.

Tenth: That all labels, signs, prints, packages,
wrappers, bottles or receptacles in possession of the
defendants bearing the trade-mark of plaintiff or any
colorable imitation thereof, be forthwith delivered up
by defendant to solicitors for plaintiff for destruction.

— 519 —

THE COCA-COLA COMPANY

Eleventh: It is further ordered that the defendant,
E. L. Caldwell, pay all costs accrued in this case and
that the plaintiff recover of and from E. L. Caldwell
all the costs of this suit to be taxed and have execu-
tion thereon.

This the 27th day oi October, 1922.

D. C. WESTENHAVEE,

District Judge.
Consented to:

Candler, Thomson & Hirsch, White, Cannon <&
Speith, Solicitors and of Counsel for Plaintiff.

Roscoe J. Webb, Solicitor and of Counsel for De-
fendant.

E. L. Caldwell, Defendant, in propria persona.

— 520 —

IN THE UNITED STATES DISTRICT COURT,

FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

NOVEMBER TERM, A. D. 1917

No. 963— IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.
SPANISH CORK AND STOPPER COMPANY,

Defendant.

This cause came on to be heard at this term and
was argued by counsel, and thereupon, upon consid-
eration thereof and the consent of all parties thereto,
it was ordered, adjudged and decreed as follows :

That the Court has jurisdiction of the subject mat-
ter of the suit and of the parties thereto; that the
said defendant, its agents, officers, attorneys, suc-
cessors, assigns and all persons taking or holding
under or through defendant, and each and all thereof,
be, and the same are hereby, perpetually enjoined and
restrained from selling, dealing in, or supplying to
any person, firm or corporation any bottle crowns or
stoppers or any labels or other material bearing or
containing the word " Coca-Cola" or any like word
or words either alone or in connection with other
words or names, and from; further doing any act or
thing or contributing or aiding in the doing of any
act or thing which may be calculated to represent
or induce the belief that any bottled product not made

— 521 —

THE COCA-COLA COMPANY

or authorized by plaintiff is "Coca-Cola" or the prod-
uct of plaintiff; Provided, however, that nothing
herein contained shall be construed as preventing the
defendant, its officers, agents, attorneys, successors
or assigns from selling or supplying either to plain-
tiff or to any person, firm or corporation who are
authorized by plaintiff to use the word " Coca-Cola"
thereon, bottle stoppers, crowns or labels with the
said word "Coca-Cola" on the same; that a writ of
injunction issue to the above effect; that the plain-
tiff having waived an accounting of profits and an
assessment of damages by reason of the alleged con-
duct of the defendant set out in the bill of complaint,
that plaintiff in lieu and in full thereof do have and
recover from the defendant the sum of One Dollar
in full of profits and damages by reason of the al-
leged conduct of said defendant In said bill of com-
plaint set out and that plaintiff do have and recover
from defendant its costs herein to be taxed.

We consent to the entry of the above decree this 5th
day of December, A. D. 1917.

Can filer, Thomson & Hirsch, Frank F. Reed & Ed-
ward S. Rogers, Solicitors for Plaintiff.

Isedore S. Blumenthal, Solicitor for Defendant.

Enter Dec. 7th, 1917.

GEORGE A. CARPENTER,
Judge.

— 522

UNITED STATES DISTRICT COURT, FOR
THE SOUTHERN DISTRICT
OF NEW YORK

THE COCA-COLA COMPANY, Complainant,

v.

BERNARD SANDROWITZ, doing business under
the trade name and style of COLUMBIA BOT-
TLING WORKS; JONAS KOWARSKY and
JOHN BERNSTEIN (the name John being fic-
titious, defendant's real name being unknown to
complainant), doing business as STANDARD
CORK & SEAL CO., Defendants.

This cause coming on to be heard on complainant's
motion for a final decree, the complainant appearing
by its solicitor Harry D. Nims, and the defendant
Bernard Sandrowitz appearing in person, and it ap-
pearing to the court that the issues involved herein
have been settled and agreed upon by the parties
hereto, and the defendant Bernard Sandrowitz agree-
ing to consent to the entry of a final decree in the
following form:

Now, on motion of Harry D. Nims, solicitor for the
complainant, it is

Ordered, Adjudged and Decreed that the defendant
Bernard Sandrowitz be and he hereby is perpetually
enjoined and restrained —

I. From using in any manner whatsoever in the
manufacture or sale of beverages, or of bottlers'
supplies, the name "Coca-Cola" or any colorable im-
itation thereof;

II. From the purchase, sale, giving away, or dis-
posing of, in any manner, bottles, caps, stoppers, or
crowns, or any bottling supplies, bearing the name
"Coca-Cola" or any colorable imitation thereof.

That no accounting of profits and damages is or-
dered from the defendant Bernard Sandrowitz, this

— 523 —

THE COCA-COLA COMPANY

injunction being consented to by the said defendant
in lieu of and in satisfaction for such damages and
profits, and that no costs shall be entered against
this defendant.

July 24th, 1914. LEARNED HAND,

United States District Judge.

I consent to the entry of the foregoing decree :

BERNARD SANDROWITZ,

Candler, Thomson & Hirsch, Atlanta, Ga. ; Harry
D. Nims, New York City, for Complainant.

— 524 —

v. BEENABD SANDROWITZ, et al

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK

THE COCA-COLA COMPANY, Complainant,

v.

BERNARD SANDROWITZ, doing business under
the trade name and style of COLUMBIA BOT-
TLING WORKS; JONAS KOWARSKY and
JOHN BERNSTEIN (the name John being fic-
titious, defendant's real name being unknown to
complainant), doing business as STANDARD
CORK & SEAL CO., Defendants.

This cause coming on to be heard on complainant's
motion for a final decree, the complainant by its so-
licitor Harry D. Nims, and the defendants Jonas
Kowarsky and Michael Bernstein appearing in per-
son, and it appearing to the court that the issues
involved herein have been settled and agreed upon
by the parties hereto, and the defendants Jonas
Kowarsky and Michael Bernstein agreeing to consent
to the entry of a final decree in the following form :

Now, on motion of Harry D. Nims, solicitor for the
complainant, it is

Ordered, Adjudged and Decreed that the defend-
ants Jonas Kowarsky and Michael Bernstein be and
they hereby are perpetually enjoined and restrained—

I. From using in any manner whatsoever in the
manufacture or sale of beverages, or of bottlers' sup-
plies, the name " Coca-Cola" or any colorable imita-
tion thereof:

II. From the purchase, sale, giving away, or dis-
posing of in any manner, bottles, caps, stoppers, or
crowns, or any bottling supplies, bearing the name
"Coca-Cola", or any colorable imitation thereof.

— 525 —

THE COCA-COLA COMPANY

Further Ordered, Adjudged and Decreed that the
defendants Jonas Kowarsky and Michael Bernstein
deliver over to The Coca-Cola Company or any duly
authorized representative of that Company, upon de-
mand, all caps, crowns and stoppers and all other
advertising or matter of any sort whatever which
contains the name "Coca-Cola" or any colorable im-
itation thereof.

That no accounting of profits and damages is or-
dered from the defendants Jones Kowarsky and
Bernstein, this injunction being consented to by the
said defendants in lieu of and in satisfaction for such
damages and profits; and that no costs shall be en-
tered against these defendants.

LEARNED HAND,
United States District Judge.

I

We consent to the entry of the foregoing decree :

MICHAEL BERNSTEIN,
JONAS KOWARSKY.

Candler, Thomson & Hirsch, Atlanta, Ga. ; Harry
D. Nims, New York City, for Complainant.

— 526 —

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF MISSOURI,

EASTERN DIVISION

No. 4419— IN EQUITY

THE COCA-COLA COMPANY, Plaintiff,

v.
MORRISON J. MILLER, Defendant.

FINAL DECEEE.

Now this day, the parties hereto having consented
thereunto as evidenced by their stipulation herein
filed, the Court doth

Order, 'Adjudge and Decree that the plaintiff, The
Coca-Cola Company, a Georgia corporation, is the
sole and exclusive owner of the trade-mark consist-
ing of the word "Coca-Cola", and is the sole and
exclusive owner of the formula whereunder the bev-
erage designated and known to the trade and the pub-
lic as "Coca-Cola" is made; that the said trade-mark
"Coca-Cola" is a lawful, valid and subsisting tech-
nical trade-mark and has been lawfully registered as
such in pursuance of the several Acts of Congress
providing for the registration of trade-marks, and
that the certificates of such registration, Certificate
numbered 22,406, issued January 31, 1893, and Cer-
tificate numbered 47,189 issued October 31st, 1905,
are lawful and valid certificates of trade-mark regis-
tration and are each the sole and exclusive property
of the plaintiff.

That the defendant Morrison J. Miller, his agents,
servants and employees and each of them be, and they
are hereby, forever and perpetually enjoined and

— 527 —

THE COCA-COLA COMPANY

restrained as follows : from asserting or publishing,
verbally or in writing, any claim of title, right or
ownership to the trade-mark "Coca-Cola" or the for-
mula whereby the beverage known as "Coca-Cola" is
made and produced ; from publishing or asserting any
statement containing directly or by implication a
charge or imputation that the plaintiff is not the sole
and exclusive owner of the trade-mark "Coca-Cola"
or the formula whereby the syrup or beverage known
as "Coca-Cola" is made.

The plaintiff waives an accounting of profits or
damages. This decree is entered at the costs of the
defendant.

DAVID P. DYER,

Judge.

The parties hereto hereby consent to the entry of
the above and foregoing final decree, this 27th day
of April, 1915.

Candler, Thomson & Hirsch, James L. Hopkins,
Solicitors and of Counsel for Plaintiff.

William Zachritz, Solicitor and of Counsel for De-
fendant.

(Entered April 27, 1915.)

— 528 —

IN THE UNITED STATES
PATENT OFFICE

OPPOSITION No. 15,753
KENT'S COCA-COLA

THE COCA-COLA COMPANY

v.
BEERMANN v. KENT.

LEHMANN, PATTISON & NESBIT,
For The Coca-Cola Company.

MESSRS. MUNN & COMPANY,
For Beermann.

Mr. J. F. KERR,

For Kent.

— 529 —

THE COCA-COLA COMPANY

UNITED STATES PATENT OFFICE

THE COCA-COLA CO.

v.
BEERMANN v. KENT.

Trade-Mark for Tonic
No. 15,753

Application of Coca-Cola Co. filed May 14, 1892.
Application of Beermann filed Feb. 12, 1892. Keg.
20,818.

Application of Kent filed Nov. 21, 1888. Reg. 16,209.

Messrs. Lehmann, Pattison $ Nesbit, Attorneys
for Coca-Cola Company.

Messrs. Munn & Co., Attorneys for Beermann.
Mr. J. F. Kerr, Attorney for Kent.

This is an interference between Kent, the registrant
of the trade-mark Coca-Cola; Beermann, the regis-
trant of the. trade-mark Co-Co-Colian, and the ap-
plication of The "Coca-Cola Co. for the registration of
the trade-mark Coca-Cola.

Beermann filed his application Feb. 12, 1892, and
his certificate issued March 8, 1892. In his state-
ment he alleged continuous use since January 1, 1892.
He took no testimony, and as this date is long

— 530 —

v. BEEEMANN v. KENT

subsequent to the registration by Kent, he, Beermann,
need not be further considered.

Testimony was taken both by Kent and The Coca-
Cola Co. On Oct. 11, 1892, a motion was made on be-
half of The Coca-Cola Co. among other things, "That
all testimony in behalf of Benjamin Kent tending to
establish a date prior to the first of June, 1888, be
eliminated from the record on the ground that, as
the above date is the date set up by him under oath
in his letters of registration, as the time at which he
began a continuous use of the mark in question, he
is held thereto in this interference proceeding." On
Nov. 3, 1892, the examiner of interferences passed
upon this part of the motion as follows: "It seems
very plain to the examiner that the first branch of
this motion ought not to be heard upon its merits
or determined by him prior to the final hearing of
the case, and he does hereby refuse to consider that
branch of the motion." Under this order the above
motion of The Coca-Cola Co. comes up for determina-
tion.

By the Act of March 3, 1881, Sec. 1, relating to the
Registration of Trade-Marks, an applicant is required
to set forth in his statement "the length of time dur-
ing which the trade-mark has been used." In com-
pliance with this requirement Kent alleged continuous
use in his business since June 1, 1888. In his testi-
mony he attempted to set up the act of adoption and
use as far back as 1884 or 1885. He brings one wit-
ness who testifies to the store use of the symbol Coca-
Cola in 1885 and another who testifies to the same
use in January or February, 1886. The Coca-Cola
Co. contends that Kent should be restricted to the
date alleged in his statement as to the date of adop-
tion and should not be permitted to set up an earlier
date. This contention must be supported in view of
the present practice, which views a statement, made
in connection with an application for the registration
of a trade-mark, in the same light as a preliminary

— 531 —

THE COCA-COLA COMPANY

statement in an interference proceeding between two
applications for patents for an invention. LePage
Mfg. Co. v. Russia Cement Co., 40 MSC. D. 329. And
as parties are strictly held in their proofs to the dates
set up in a preliminary statement (Rule 110) the same
restriction has been placed upon proofs in a contest
as to prior adoption and use of a trade-mark, and
the parties held strictly to the dates alleged in their
statements filed with the application for registration.
Rule 13, Rules Relating to the Registration of Trade-
Marks; Browne on Trade-Marks, 2 Ed., 1885, p. 625,
S. 627. Such being the practice, Kent is not allowed
an earlier date than June 1, 1888, the date alleged
in his statement, as the date of adoption, and it is
not necessary to consider the point raised by attor-
ney for The Coca-Cola Co. that the use by Kent of the
said symbol as a " store term" artd on written labels,
put upon bottles sold over his counter, did not amount
to adoption and use. Kent being thus restricted, it
becomes necessary for The Coca-Cola Co., upon whom
is the burden of proof, to overcome the "prima facie
evidence of ownership" existing in the registrant
Kent by virtue of Sec. 7 of the statute of March 3,
1881. The statement in the application for registra-
tion of The Coca-Cola Co. alleges continuous use since
June 28, 1887. It appears from the testimony that
this date is the date of the registration of a label
by one J. S. Pemberton, under the name of "Coca-
Cola Syrup and Extract." Asa G. Candler, the presi-
dent of The Coca-Cola Co., testifies that prior to the
formation of said company on Feb. 22, 1892, he had
acquired through several intermediate assignments
the right to the -label and the use of the word Coca-
Cola; and that Pemberton, and his other privies in
title, had adopted and used the said word to desig-
nate a beverage continuously since the spring of
1886. The only other witness, Robinson, testifies to
the adoption and use by Pemberton of the word Coca-
Cola to designate a beverage in the spring of 1886 and

— 532 —

v. BEEEMANN v. KENT

its continuous use since, and he gives a list of sales
in the spring of 1887.

It is to be noted that The Coca-Cola Co. has of-
fended as grievously as Kent in the infringement of
Kule 13, by offering testimony to show adoption and
use prior to the date alleged in their application state-
ment. But while The Coca-Cola Co. cannot avail
themselves of a date earlier than June 28, 1887, the
testimony shows beyond any reasonable doubt that on
said date the privies in title of the said company had
adopted and used the symbol Coca-Cola as a trade-
mark. It follows, therefore, that judgment as to prior
adoption and use must be and the same is hereby ren-
dered in favor of The Coca-Cola Co. Limit of Ap-
peal will expire January 4, 1893.

WALTER JOHNSON,
Examiner of Interferences.

December 15, 1892.

— 533 —

IN THE PATENT OFFICE
OF THE UNITED STATES

OPPOSITION No. 1944— SOLA-COLA

I

THE COCA-COLA COMPANY

v.
SOLA-COLA COMPANY, INC.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
REED & ROGERS, Chicago, Illinois,
F. M. PHELPS, Washington, D. C.,

For Opposer.

— 534 —

cca

IN THE UNITED STATES PATENT OFFICE

OPPOSITION No. 1944

Final Hearing: August 22, 1916

THE COCA-COLA COMPANY

v.
SOLA-COLA COMPANY, INC.

Application No. 89,724, Filed October 7, 1915.
Published November 16, 1915.

Candler, Thomson & Hirsch, Atlanta, Georgia, and
Messrs. Frank F. Reed and Edward S. Rogers, and
Francis M. Phelps, for The Coca-Cola Company.

Messrs. H. B. Wilson & Company, for the Sola-
Cola Company, Inc.

This is an opposition by The Coca-Cola Company to
the registration by the Sola-Cola Company, Inc., of
the mark "Sola-Cola", written in script, as a trade-
mark for a beverage and a syrup for making the
same.

Without reciting in detail the questions put in
issue by the pleadings, it may be stated that the case
presents only two questions for consideration, namely,
(1) that of the identity of the marks, and (2) whether

— 535 —

THE COCA-COLA COMPANY

the mark of the applicant is substantially the cor-
porate name of the opposer.

The opposer 's mark is the expression " Coca-Cola",
written in script with certain special flourishes. There
is no question but that the opposer used this expres-
sion as a trade-mark for beverages, and syrups for
making the same, long prior to any date of use
claimed by the applicant. It is urged on behalf of
the Sola-Cola Company, Inc., that the marks are un-
like, and attention is directed to the fact that the
first word of its mark "Sola" is totally different from
the first word "Coca" of the mark of the opposer.
While this is true, taking the expression as a whole,
there is not only a close similarity between the ap-
pearance of the two expressions, but also a close re-
semblance in the sound thereof. Applicant writes its
mark in script, very closely simulating the well-
known chirography of the opposer. The flourishes of
the two marks are different, but these alone cannot
be regarded as differentiating the marks. While of
course the mark of the applicant could be so pro-
nounced as to be differentiated from that of the op-
poser, the expressions are so clearly alike that when
pronounced normally there is serious danger of con-
fusion. In this respect the case is quite similar to
that of Lang v. Green River Distilling Co., 148 0. G.
280, 33 App. D. C. 506, where it was held that "Green
Ribbon" should not be registered over "Green
River" for the same class of goods. The opposer 's
brief cites a long list of cases in support of its con-
tention that these marks are alike. No attempt will
be made to discuss these citations. In my judgment
the mark which the applicant seeks to register is not
sufficiently different from that of the opposer, either
in appearance or sound, as to justify registration
over the earlier mark. On the other hand it is be-
lieved that confusion would be quite likely to occur,
and for this reason the applicant should not be per-
mitted to register.

— 536 —

v. SOLA-COLA COMPANY, INC.

Moreover, since the expression "Sola Cola" is so
nearly like "Coca-Cola" as to warrant the conclusion
that confusion would arise, "Sola Cola" becomes in
effect the essential part of the name of the opposer,
and as such cannot be registered for this reason also
(Asbestone Co. v. The Philip Carey Manufacturing
Co., 200 0. G. 857, 41 App. D. C. 507; The Mansfield
Tire & Rubber Company v. Ford Motor Company, 222
0. G. 1056, not yet in App. D. C.; D. H. Burrell & Co.
v. Simplex Electric Heating Co., 225 0. G. 737, not
yet in App. D. C.). As stated by the court in the first
mentioned case, it is the purpose of the statute to take
from the realm of registration, names of individuals,
firms and corporations, and no one is entitled to reg-
ister such names for any purpose when objection is
raised by the owner of the name.

The opposition is sustained, and it is adjudged that
the Sola Cola Company, Inc., is not entitled to reg-
ister the mark shown in its application for the goods
therein specified.

Limit of appeal: September 30, 1916.

H. E. STAUFFER,
Examiner of Interferences.
August 30, 1916.

537

IN THE PATENT OFFICE
OF THE UNITED STATES

OPPOSITION No. 2383— TAKA-KOLA

THE COCA-COLA COMPANY

v.
OLD DOMINION BEVERAGE CORPORATION.

HAROLD HIRSCH, Atlanta, Georgia,
REED & ROGERS, Chicago, 111.,
FRANCIS M. PHELPS, Washington, D. C.,
For The Coca-Cola Company.

— 538 —

nff

cA

IN THE UNITED STATES PATENT OFFICE

OPPOSITION No. 2383— July 26, 1921

THE COCA-COLA COMPANY

v.
OLD DOMINION BEVERAGE CORPORATION.

The Coca-Cola Company, c/o Francis M. Phelps,

Washing-ton, D. C.

No response having been received to the office ac-
tion of June 29, 1921, the opposition is sustained and
it is hereby adjudged that the Old Dominion Bever-
age Corporation, the applicant, is not entitled to the
registration of the mark for which it has made appli-
cation.

Limit of appeal: August 15, 1921.

— 539 —

. THE COCA-COLA COMPANY

IN THE UNITED STATES PATENT OFFICE

Hearing ;
September 19, 1917.

MSP.

THE COCA-COLA COMPANY

v.
OLD DOMINION BEVERAGE CORPORATION.

Opposition No. 2383.

I

Appeal From Examiner of Interferences.

Trade-Mark for Soft Drinks.

Application of Old Dominion Beverage Corporation
filed January 22, 1917, No. 100,819, published April
10, 1917.

Mr. Harold Hirsch, Messrs. Frank F. Reed and
Edward S. Rogers and Mr. Francis M. Phelps for
The Coca-Cola Company.

Mr. Victor J. Evans for Old Dominion Beverage
Corporation.

This is an appeal from the decision of the exam-
iner of interferences denying the Old Dominion

— 540 —

v. OLD DOMINION BEVERAGE CORPORATION

Beverage Corporation's motion, (1st) to dismiss, and
(2nd) to strike out grounds 1 to 6 of the opposition.

First, as to the dismissal of the opposition. The
applicant originally filed for registration the words
"Taka-Kola." The examiner of trade-marks refused
to register these words on the ground that "The
expression 'Taka-Kola' is believed to be the full
equivalent of 'Taka-Kola,' which is regarded as de-
scriptive." Thereupon applicant cancelled from the
drawing the word Kola and amended its specifica-
tion to say that "No claim is made to the word
Kola,"

But applicant's labels as filed still show its mark
as actually used to be "Taka-Kola," written in script
very much like the script of the registered trade-
mark of opposer, "Coca-Cola," Under these circum-
stances, applicant could use "Taka-Kola" as his mark
and state on his labels, etc., "Registered in the U. S.
Patent Office," since those words are still on ap-
plicant's labels, although Kola is taken off its drawing.

The publication in the Official Gazette of April 10,
1917, Serial No. 100,819, states "no claim being made
to the word Kola." Under these circumstances, the
interference examiner's decision refusing to dismiss
the opposition was right. (See Quaker City Flour
Mills Co. v. Quaker Oats Co., 214 0. G. 684, 43 Apps.
D. C. 260; in re Motz Tire & Rubber Co., 193 0. G.
513, 40 App. D. C. 487 ; Ex Parte Newman, 159 0. G.
993; 0. & W. Thum Co. v. Dickinson, 240 0. G. 337,
App. D. C.)

Second, in accordance with the decision in Coca-
Cola Company v. Koke Company of America, 123
Msd. 416, the examiner's refusal to strike out grounds
1 to 6 of the opposition was also right, and his de-
cision refusing to dismiss and strike out is affirmed.

J. T. NEWTON,
Commissioner.

September 27, 1917.

— 541 —

IN THE PATENT OFFICE
OF THE UNITED STATES

OPPOSITION No. 1955— KEL- KOLA

THE COCA-COLA COMPANY

v.
KELLY MANUFACTURING COMPANY.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
REED & ROGERS, Chicago, Illinois,
F. M. PHELPS, Washington, D. C.,
For the Coca-Cola Company.

— 542

IN THE UNITED STATES PATENT OFFICE

LBF September 19, 1916

OPPOSITION No. 1995
Final Hearing

THE COCA-COLA COMPANY.

v.
KELLY MANUFACTURING COMPANY.

Application No. 91,224, Filed December 6, 1915,
Published January 18, 1916.

A Non-alcoholic Beverage Sold as a Soft Drink and
Syrup for Making the Same.

Mr. Harold Hirsch, Messrs. Frank F. Reed and
Edward S. Rogers and Mr. Francis M. Phelps for
The Coca-Cola Company.

Messrs. H. B. Wilson & Co. for Kelly Manufac-
turing Company.

This is an opposition by the Coca-Cola Company
against registration of the mark for which applica-
tion has been filed by the Kelly Manufacturing Com-
pany.

— 543 —

THE COCA-COLA COMPANY

The only question to be considered in this case is
the similarity of the marks, for the goods are the
same and the opposer has prior use of its mark.

The prominent and important feature of the appli-
cant's mark is the word "Kel-Kola," written in
script with a paraph underneath the word. There are
other minor features, but these are not of any par-
ticular importance.

The mark of the opposer is well known and con-
sists of the words " Coca-Cola " in script type. The
last two syllables of both marks are identical, and
the style of type is so nearly similar that the dif-
ference between the manner in which the syllable
"ola" is written in the two words can hardly be
distinguished. The marks as a whole are regarded
as similar.

The opposition is sustained^ and it is adjudged
that the Kelly Manufacturing Company, the appli-
cant, is not entitled to register the mark shown in
its application.

Limit of Appeal: November 18, 1916.

H. E. STAUFFER,
Examiner of Interferences.

October 18, 1916.

544 —

I

IN THE PATENT OFFICE
OF THE UNITED STATES

OPPOSITION No. 2286— KO-GO-LEM-A

THE COCA-COLA COMPANY

v.
BAY CAVE.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
REED & ROGERS, Chicago, Illinois,
F. M. PHELPS, Washington, D. C.,
For Opposer.

— 545 —

THE COCA-COLA COMPANY

UNITED STATES PATENT OFFICE

Hearing :

June 8, 1917 JRS

THE COCA-COLA COMPANY

v.
RAY CAVE.

In Re: Opposition No. 2286.

Appeal from Examiner of Interferences.

Trade-Mark for Soda-Fountain Syrup.

Application of Bay Cave filed October 9, 1916, No.
98,513, published December 12, 1916.

Mr. Harold Hirscli, Messrs. Reed and Rogers, and
Mr. Francis M. Phelps, for The Coca-Cola Company.

Mr. B. F* Harts for Eay Cave.

Appeal from dismissal of an opposition to regis-
tration of a trade-mark.

Ray Cave appears to have lately adopted and ap-
plied for registration of the term "Ko-Co-Lem-A" as
a mark for soda fountain syrup; the labels filed with
his application showing also that he does business
as the ' ' Ko-Co-Lem- A Co." Registration was

— 546 —

v. BAY CAVE

opposed by The Coca-Cola Co. on the ground that it
has for many years used the similar trade-mark
" Coca-Cola" for the same goods, having registered its
mark in 1893 (No. 22,406). The opposer also pointed
out that its name Coca-Cola has always been written in
a peculiar style of lettering which the applicant has
imitated. On a demurrer resting substantially on the
contention of no confusing resemblance of the marks
of the parties, the examiner of interferences held that
the common part of the marks, i. e., the terms "Coca"
or "Coke," "is a common term descriptive of the
cocoa bean and therefore not to be regarded as the
essential part of the mark of either party"; where-
fore he found the marks unlike and the case not open
to question enough to go to proofs.

I think there has been too strict an analysis of the
marks and too little weight given their whole signi-
ficances. I can think of no proper reason why the
applicant chose a term which uses the same number
of syllables, begins and ends with the same syllables,
and employs the same lettering including the same
initial and final flourishes in the lettering. He is un-
der suspicion because he did not take care to adopt a
"mark by which the goods of the owner *
may be distinguished from other goods of the same
class," as contemplated by the statute (Sec. 5). If
he was really using "Coco" as a descriptive term
he might be naturally expected to call his goods
"Lemakoco" rather than " Ko-Co-Lem-A. "

The Examiner's ruling is reversed.

T. W. H. CLAY,
Assistant Commissioner.
June 15, 1917.

— 547 —

THE COCA-COLA COMPANY

DEPARTMENT OF THE INTERIOR,

UNITED STATES PATENT OFFICE

WASHINGTON, D. G.

JHD August 3, 1917,

In Re: Opposition No. 2286.

THE COCA-COLA COMPANY

v.
CAVE.

Before the Examiner of Interferences.

The Coca-Cola Company, c/o Francis M. Phelps, City.

Please find below a communication from the Ex-
aminer in charge of Interferences in regard to the
above-cited case.

Very respectfully,

THOMAS EWING,
Commissioner of Patents.

Whereas, the applicant, Cave, has failed to make
any showing why judgment on the record should not
be entered sustaining the notice of opposition, in
view of his failure to file an answer, and whereas
the time allowed for such action has expired, pursu-
ant to the notice given July 16, 1917, the opposition
is sustained, and judgment is hereby rendered to the
effect that Ray Cave is not entitled to the registra-
tion of the trade-mark for which he has made appli-
cation.

Limit of appeal: August 23, 1917.

— 548— :*•

IN THE PATENT OFFICE
OF THE UNITED STATES

OPPOSITION No. 1759— CARBO-GOLA

THE COCA-COLA COMPANY

v.
THE CABBO-COLA COMPANY.

CANDLER, THOMSON & HIRSCH, Atlanta, Ga.,
EEED & ROGERS, Chicago, Illinois,
F. M. PHELPS, Washington, D. C.,
For The Coca-Cola Company.

— 549 —

THE COCA-COLA COMPANY

DEPARTMENT OF THE INTERIOR
UNITED STATES PATENT OFFICE
WASHINGTON, D. C.

IAW August 19, 1915,

In Re: Opposition No. 1759

THE COCA-COLA COMPANY

v.
THE CARBO-COLA COMPANY.

Before the Examiner ofl Interferences.

The Coca-Cola Co., c/o F. M. Phelps, City.

Please find